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2013 DIGILAW 634 (RAJ)

Kamal Prakash Biyani v. State of Rajasthan

2013-04-01

VINEET KOTHARI

body2013
JUDGMENT 1. - This writ petition has been filed by the petitioner against the revision and dead rent in the case of petitioner by the impugned order dated 18.2.2000 revising the dead rent from Rs. 1,68,737/- to Rs. 2,36,232/- per annum adding 40% increase in the dead rent fixed by the Mining Department at Rs. 1,68,737/- vide order dated 15.11.1997. 2. The learned counsel for the petitioner Mr. D.D. Thanvi submitted that this revision of dead rent could not exceed 5 times of the dead rent fixed at the time of grant of lease as per 3rd Proviso to Rule 18(3) of MMCR, 1986. 3. On the other hand, Mr. R.K. Soni, learned counsel appearing for the Mining Department submitted that the said dead rent of Rs. 1,68,737/- was fixed by the respondent-Mining Department on 15.11.1997 with clear stipulation and condition in the said order that the same would be revised after every 5 years and consequently, the impugned revision of dead rent by the order Annex. 2 dated 18.2.2000 by adding 40% thereto and revising the dead rent to Rs. 2,36,232/- was perfectly legal and justified. He also relied upon the recent decision of this Court in the case of Jabbar Singh v. State of Rajasthan - SBCWP No. 3319/2011 decided on 20.2.2013 . The learned counsel for the respondents Mr. R.K. Soni also submitted that vide order dated 9.6.1987 the State Government had added newly constituted three tehsils, namely, Srivijaynagar, Rawatsar and Pilibanga in the mining lease No. 13/94 in favour of the petitioner Kamal Prakash Biyani in which mineral salt petre (Kalmi Shora) was excavated and therefore, with the addition of these areas, the revision of dead rent was all the more justified. 4. This fact is disputed by the learned counsel for the petitioner Mr. D.D. Thanvi. He submitted that no such reason is mentioned in the impugned order nor any such addition of area was made and it was only reconstitution of Tehsils within the area already given in lease to the petitioner. 5. After hearing the learned counsel for the parties, it appears that the matter deserves to go back to the concerned authority, namely, Assistant Mining Engineer, Sri Ganganagar. As far as interpretation of Rule 18(3) is concerned, this Court in the case of abbar Singh (supra) has recently held as under : "15. 5. After hearing the learned counsel for the parties, it appears that the matter deserves to go back to the concerned authority, namely, Assistant Mining Engineer, Sri Ganganagar. As far as interpretation of Rule 18(3) is concerned, this Court in the case of abbar Singh (supra) has recently held as under : "15. It is beyond the pale of doubt that Rule 18(3) of the Rules of 1986, which deals with fixation and payment of dead rent is clear to its core. The said rule is nothing but a simple provision providing for the mathematical calculations and computation on the due given dates. The measures and factors, which are required to compute such liability of payment of dead rent by the lessee of the mining lease, are the facts already existing on record and within the knowledge of the lessee. The Rule 18(3) for revision of dead rent is unlike assessment power of a taxing authority, which are quasi-judicial in nature and which empowers such assessing authority to undertake the assessment proceedings on the basis of returns and records of the assessee. Since the payment of dead rent is based on the area of mining lease and rates given in Schedule-11 or the auction amount of dead rent, if there is such an event as it has taken place in the present case for the gap area, then the provision for revision of dead rent every five years from the date of initial grant or renewal in accordance with the provisions specified in Rule 18(3), namely, adding of 40% of existing dead rent to the already existing dead rent on the date of revision due, is nothing but a simple mathematical computation. When the Rule itself provides for method of computation of any liability by the subject, it no more remains a quasi-judicial function, to be undertaken by the authority concerned and the subject or the person, who is to discharge such liability specified in these rules can be very well presumed to be in know of the relevant rules. The factors and the measures for the determination of such revised dead rent like the area of mining lease, period when revision is due, rates specified in Schedule-II and the auction amount of dead rent are already known to him and are fully within his knowledge. The factors and the measures for the determination of such revised dead rent like the area of mining lease, period when revision is due, rates specified in Schedule-II and the auction amount of dead rent are already known to him and are fully within his knowledge. Such knowledge in the facts to the present case also is neither disputed nor questioned by anyone including the petitioner. 16. In the context of the Rule 18(3), which is quoted above, the contention of the learned counsel for the petitioner, Mr. D.D. Thanvi that the petitioner was not given any opportunity of hearing before raising the impugned demand under Annex. 3 dated 28.3.2011, is not only misconceived but wrong for two fold reasons, viz. (i) as aforesaid since the Rule 18(3) provides for step by step method of computation of the liability for payment of dead rent including the revised dead rent on the basis of factors, which are within the knowledge of the lessee, the impugned demand cannot be said to be a result of any adjudicatory process for which the petitioner could be required to be given an opportunity of hearing before communicating him the said demand; and (ii) the Annex. 3, communication dated 28.3.2011 is nothing but a notice to the petitioner calling upon him to either pay demand of revised dead rent, if he accepts the same as correct, and if not acceptable to him. It nowhere prohibits him to approach the concerned authority himself raising his objections, and asking the authority concerned to give the details of such demand and method of computation thereof. 17. Merely because, the petitioner has been called upon to pay the said demand of revised dead rent of Rs. 14,59,785/- in the said communication Annex. 3 dated 28.3.2011, it could not have furnished any cause of action to the petitioner to invoke.the extraordinary jurisdiction of this Court straightway by filing the present writ petition. The said tentative demand of revised dead rent is one in accordance with Rule 18(3) of which either payment could be made by the petitioner or objection as to the calculation mistake, if any, could be raised by him. The petitioner did not avail either of the two options but rushed to this Court unnecessarily and rather prematurely. 18. Prima facie, this Court is satisfied that the said demand of revision of dead rent of Rs. The petitioner did not avail either of the two options but rushed to this Court unnecessarily and rather prematurely. 18. Prima facie, this Court is satisfied that the said demand of revision of dead rent of Rs. 14,59,785/- on the basis of audit objection, quoted above, is in accord with the computation method provided under the Rule 18(3) of the MMCR Rules of 1986. The respondent Mining Department was obviously earlier in error in not revising the dead rent on the due dates on 31.1.1999 and 31.1.2004, and it is only when the above mistake came to the notice of the auditor in the audit of the concerned record conducted by him and thereupon the audit objection in question was raised by the auditor concerned that the same was communicated to the petitioner by the concerned Mining Engineer vided Annex. 3 dated 28.3.2011. The said communication Annex. 3 dated 28.3.2011 appears to be in accord with the Circular Annex. 4 dated 20.8.2004 also, where the Audit Department of the Government of Rajasthan seeking to avoid unnecessary impleadment of the Auditor in the litigation, sought to clarify that while raising the demand on the basis of audit objection, the concerned departmental authorities should refer to the mistake or lapse itself and relevant rules instead of raising demand solely with reference to the audit objection. This circular neither says nor does it mean, as contended by the learned counsel for the petitioner that audit department has restricted the concerned authority in any manner not to raise any demand on the basis of audit objection. To say the least, this contention is misconceived. The very purpose of such audit objection is to correct the mistake and recover the deficit public revenue, from the subject or assessee or lessee in mining cases. 19. It is true that the Audit Department is an independent wing of the State Government, and the sole object of the Audit Department is to point out the mistakes of the concerned authorities of the various Departments working in the State, which are within the domain of the Audit Department. 19. It is true that the Audit Department is an independent wing of the State Government, and the sole object of the Audit Department is to point out the mistakes of the concerned authorities of the various Departments working in the State, which are within the domain of the Audit Department. The said Circular, merely seeks to avoid the possibility of unnecessary impleadment of audit department in the litigation but the concerned departmental authorities, should own up their own mistakes and responsibility in this regard and while putting, the subjects or lessees under any particular statutory liability to discharge the same, merely calls upon such authorities to narrate the concerned mistake or irregularity and with reference to the relevant rules, so that such unnecessary implement of the audit department in the litigation before the Courts of law can be avoided, which is wholly unnecessary in view of the nature of their discharge of duties. 20. In the present case itself, the petitioner has impleaded the respondent No. 2, Accountant General, Rajasthan, Jaipur, precisely fortifying the aforesaid apprehension expressed by audit department in the said Circular dated 20.8.2007 and not only that said respondent No. 2, Accountant General, had to engage a lawyer and file its reply to the writ petition before this Court. 21. It was essentially the duty and obligation of the Mining Department to recover the royalty or the revised dead rent in accordance with Rule 18(3) but since at the relevant point of time, they failed to do so, such mistake was pointed out by the audit department in the memo of audit objection, which was merely communicated to the petitioner requiring him to pay the said difference amount of revised dead rent by the concerned Mining Engineer vide Annex.3 dated 28.3.2011, which was otherwise also a pre-existing statutory and contractual liability of the petitioner-lessee. 22. The other contention of the learned counsel for the petitioner, Mr. Thanvi, that the said demand of revised dead rent is retrospective in character and, therefore, cannot be now permitted to be raised in the year 2011 is also equally devoid of merit and the same is, accordingly, rejected. The mistake of fact can always be rectified. 22. The other contention of the learned counsel for the petitioner, Mr. Thanvi, that the said demand of revised dead rent is retrospective in character and, therefore, cannot be now permitted to be raised in the year 2011 is also equally devoid of merit and the same is, accordingly, rejected. The mistake of fact can always be rectified. The petitioner himself was bound to comply with Rule 18(3) and suo-motu pay the revised dead rent upon the due dates of five years since the date of initial grant of lease for ten years, which period expired on 31.1.1994 and first renewal became due on 31.1.1999 and second on 31.1.2004. As stated above, the factors and measures provided in Rule 18(3) of the Rules of 1986 including the knowledge of the law i.e. the relevant Rule 18(3), can be attributed in law to the petitioner, the mining lease holder, therefore, the petitioner cannot raise an objection that the demand is being raised now for a retrospective period. The contention in the light of last Proviso of Rule 18(3) that since royalty and the dead rent are mutually adjustable and the royalty and the dead rent are mutually adjusitible and the royalty paid on the basis of excavated minerals, is liable to be adjusted against the dead rent and only after the limit of the dead rent is reached, the excess royalty would payable by the lessee, is also not sustainable because in the audit memo in question itself as quoted above, it clearly shows that the petitioner has been given a set off of such -excess royalty to he extent of Rs. 53,733/- against the revised dead rent of Rs. 15,13,518/- and only the net demand of Rs. 14,59,785/- has been raised against the petitioner and there is no conflict or non-compliance with the last or the 5th proviso to Rule 18(3) of Rules of 1986 in the present case. The cap of five times of revised dead rent of x2,52,234/- in 1998 upon additional lease, has admittedly not been crossed in the case of the petitioner. The first proviso of Rule 18(3) makes the said rates inapplicable in the case of revision of dead rent. 23. The cap of five times of revised dead rent of x2,52,234/- in 1998 upon additional lease, has admittedly not been crossed in the case of the petitioner. The first proviso of Rule 18(3) makes the said rates inapplicable in the case of revision of dead rent. 23. As already aforesaid, since the computation of revised dead rent is not a quasi-judicial exercise to be undertaken by the respondent Mining Engineer and the liability and the method of computation there of, has already been specified and clarified in the relevant Rule 18(3) itself, there was neither any need of giving of opportunity of hearing to the petitioner nor there has been a breach of principles of natural justice in the present case. Assuming for argument sake, though it is not, that it was so required the Annex.3 communication dated 28.3.2011 then is only a notice to him and nothing prevented the petitioner from approaching the concerned respondent Mining Engineer, and raising his objection as to the computation of revised , dead rent before the said authority. The liability to pay revised dead rent could not be objected by the petitioner but only the correctness of mathematical calculations could be sought to be clarified if at all the petitioner and something incorrect to point out in the same. However, since the petitioner did not avail of this opportunity and misconstruing the Annex.3 dated 28.3.2011, which is a mere communication to him, as the final adjudication order, approached this Court by way of present writ petition, which was premature for him to do so. 24. In view of the above discussion and observations, the present writ petition filed by the petitioner, in the considered opinion of this Court against the said show cause notice was not only premature but is not even based on any good factual or legal foundation. The writ petition, therefore, deserves to be dismissed and the same is, accordingly dismissed. The petitioner is, therefore, directed to deposit the revised dead rent of Rs. 14,59,785/- with the respondent-Mining Engineer, Udaipur forthwith. If the petitioner wants to point out any computation error in the said demand of revised dead rent, he may do so within two weeks from today, otherwise it may be presumed that he accepts the said calculation as correct. The petitioner is, therefore, directed to deposit the revised dead rent of Rs. 14,59,785/- with the respondent-Mining Engineer, Udaipur forthwith. If the petitioner wants to point out any computation error in the said demand of revised dead rent, he may do so within two weeks from today, otherwise it may be presumed that he accepts the said calculation as correct. If he points out any such calculation error, the concerned Mining Engineer shall immediately verify the same and passing appropriate order, communicate the correct demand of revised dead rent, if there is any such error otherwise or reiterating the aforesaid demand of Rs. 14,59,785/- will call upon the petitioner to pay the same immediately and the petitioner shall pay the same forthwith. In the absence of payment of revised dead rent by the petitioner, the respondent. Mining Department will be free to proceed against the petitioner for taking appropriate action including cancellation of Mining Lease in question and recovery of such revised dead rent through measures provided in law. This entire exercise shall be completed within one month from today and compliance report be submitted in this Court. if the petitioner does not pay the revised dead rent within one month from today, the Mining Department will be free to recover the same with interest @ 9% per annum from the due dates of payment of revised dead rent till the actual payment by the petitioner, besides action by way of the cancellation of his Mining Lease. A copy of this order be sent to the concerned parties forthwith. No costs." 6. Since there are disputed questions of facts involved in the present writ petition about condition in the previous order dated 15.11.1997, additional area given to the petitioner etc., the matter deserves to go back to the concerned authority, namely, Assistant Mining Engineer, Sri Ganganagar. The authority concerned is expected to redecide the case of the petitioner about revision of dead rent keeping in view of the aforesaid legal position. 7. Accordingly, the present writ petition is disposed of and the impugned order Annex.2 dated 18.2.2000 is set aside and the petitioner is relegated back to the said authority, namely, Assistant Mining Engineer, Sri Ganganagar for redetermining the revised dead rent after giving an opportunity of hearing to the petitioner. 7. Accordingly, the present writ petition is disposed of and the impugned order Annex.2 dated 18.2.2000 is set aside and the petitioner is relegated back to the said authority, namely, Assistant Mining Engineer, Sri Ganganagar for redetermining the revised dead rent after giving an opportunity of hearing to the petitioner. The petitioner may appear before the said authority in the first instance on 17.4.2013 and the said authority is expected to pass a detailed speaking order after giving an opportunity of hearing to the petitioner within a period of two months from today. 8. Since the respondent-Mining Department on the basis of revised dead rent has issued the demand notice of Rs. 14,62,676/- with interest to be paid by the petitioner vide order dated 22.2.2012 Annex. A-1 placed on record along with application IA No. 3649/2012 filed by the petitioner in the present writ petition on 19.3.2012 and the learned counsel for the petitioner Mr. D.D. Thanvi also submitted that the Mining Department is not issuing "Ravanna Book" to the petitioner, so as to permit him to carry on the mining activities and even dispatch the mineral already excavated, it is directed that the 'Ravanna book' may be issued to the petitioner, subject to payment of Rs. 1,75,000/- within a period of 7 days from today to make the complete payment of Dead Rent of the mine for the current year 2013-2014 against the impugned demand of revised dead rent of Rs. 14,62,676/- raised by the respondent Mining Department and the petitioner will also give an undertaking that upon redetermination by the Assistant Mining Engineer, Sriganganagar in pursuance of the aforesaid remand of the case, if demand of dead rent is again raised against him in view of the aforesaid legal position about Rule 18(3), he would deposit the balance amount also forthwith. An undertaking in writing to this effect will be furnished by the petitioner before the Assistant Mining Engineer immediately. 9. The it petition is accordingly disposed of. No costs. A copy of this order be sent to the parties concerned forthwith.Petition Dismissed. *******