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2011 DIGILAW 750 (JHR)

Sarju Prasad Mehta v. State of Jharkhand

2011-08-01

D.N.UPADHYAY, PRAKASH TATIA

body2011
JUDGMENT 1. By Court - Heard learned counsel for the parties. 2. The writ petition of the petitioner being WP(C) No. 3695 of 2009 has been dismissed vide order dated 13th November, 2009. The Letters Patent Appeal of the appellant is liable to be dismissed, not only on the ground that the writ petitioner is challenging the proceeding undertaken in the year 1993 under statutory provisions of Bihar and Orissa Public Demands Recovery Act, 1914 by filing the writ petition in the year 2009, which is delayed by about 16 years, with the plea that a public demand has been raised without notices being served upon the writ petitioner and therefore, the writ petitioner could not get any opportunity to contest the said demand and he had also no knowledge of the same, therefore, he cannot be non suited because of not challenging the proceedings of the year 1993. 3. The explanation given for the delay is liable to be rejected because of plain and simple reason that in the order-sheet, which has been placed on record by the writ petitioner-appellant, clearly indicate that several efforts were made to serve the notices upon the writ petitioner and in the order-sheet dated 2nd November, 1993 it has been clearly noticed that the petitioner refused to accept the notices and thereafter an order was passed raising demand against the petitioner for Rs.3,33,741/-. 4. Even assuming for the sake of argument that there was no proper service of notice upon the writ petitioner, even then the petitioner admittedly did not choose to question the service of notice before the same authority when he came to know about the demand raised against him. Copy of the proceedings placed on record clearly indicate that the proceeding continued since 1993 to 2007. As per the facts recorded in the ordersheet, it appears that several processes were issued and, therefore, burden lies upon the writ petitioner to explain that he has not received the notices issued by the concerned authority and the writ jurisdiction is not the jurisdiction where such question , whether notice was served upon the petitioner or not, could have been decided. 5. Be that as it may, we , even found from the merit also, that the petitioner had no case even on the question of law. 5. Be that as it may, we , even found from the merit also, that the petitioner had no case even on the question of law. The counsel for the petitioner-appellant drew our attention to the definition of the public demand as defined in sub-section(6) of Section 3 , which says that “public demand” means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon upon the date on which a certificate is signed under Part-II. The Schedule-I contains sub-clause (i) under Clause-4 , which says that any money which is declared by any enactment for the time being in force to be a demand or public demand, is recoverable under the provisions of the Act of 1914. Rule 37 of the Bihar Minor Mineral Concession Rules, 1972 clearly declared that the amounts of rent, royalty or penalty payable under these rules, shall be recoverable as a public demand under the Bihar Public Demands Recovery Act, 1914. Rule 40 thereof prescribes the penalty for unauthorized extraction and removal of minor minerals and under this Rule, complete procedure has been given what action can be taken for unauthorized extracting or removing minor minerals and sub-rule(8) of Rule 40 says that whoever removes minor mineral without valid lease/permit or on whose behalf such removal is made otherwise than in accordance with these Rules to be an agent, manager, contractor or a sub-lessee, shall be presumed to be a party to the illegal removal of the minor mineral and shall be liable to pay the price thereof and the Government may also recover from such person rent, royalty or taxes as the case may be. Therefore, any extraction of the mineral under Rules of 1972 is statutorily declared as public demand and therefore, recoverable. 6. In view of the above reasons, the judgments relied upon by the learned counsel for the petitioner-appellant, delivered in the case of Ram Chandra Singh Vrs. State of Jharkhand , a Full Bench decision reported in 1987 PLJR 47(FB) has no application, wherein such Rules were not under consideration, nor the position was in the case of Nirode Baran Banerjee Vrs. State of Bihar , reported in AIR 1981 Patna 149 and nor was the position in another case reported in ILR 1956 Cuttack 365 (Saudamini Works Vs. State of Bihar , reported in AIR 1981 Patna 149 and nor was the position in another case reported in ILR 1956 Cuttack 365 (Saudamini Works Vs. State of Orissa) , copy of which judgment has not been provided and a portion of which has been quoted in the book of the Bihar & Orissa Public Demands Recovery Act, 1914 at page-3. 7. Learned counsel for the petitioner-appellant at this stage, submitted that the commodity in question is not the minor mineral but was a major mineral. If it is so, even then the definition of the mineral given in sub-clause(a) of Section 3 of the Mines & Minerals (Development and Regulation) Act, 1957 clearly demonstrates that the Act of 1957 covers all minerals and not only the minor mineral , but includes the major mineral as well. 8. Be that as it may, learned counsel for the appellant could not show any different procedure for recovery of the cost, penalty and charges for the illegal excavation of minerals. 9. In view of the above reasons, we do not find any merit in this Letters Patent Appeal for additional reason, apart from the reasons given by the learned Single Judge. The Letters Patent Appeal is accordingly dismissed.