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2023 DIGILAW 1398 (JHR)

J. K. Bricks v. State of Jharkhand

2023-11-30

NAVNEET KUMAR, SUJIT NARAYAN PRASAD

body2023
JUDGMENT : 1. This writ petitioner is under Article 226 of the Constitution of India filed by altogether 63 writ petitioners who had deposited the separate court fees seeking therein the direction for quashing of the demand notices, annexed as Annexure-1 series issued by the respondent, by which, the demand has been made in consequence of the decision taken of less royalty calculated based upon inspection conducted as referred in the inspection report. 2. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, read as under. 3. It is the case of the petitioners that they used to manufacture bricks and are registered dealers under Jharkhand Minerals (Prevention of Illegal Mining, Transportation & Storage) Rules, 2017. 4. After inspection of their bricks kilns, the petitioners started manufacturing bricks and also used to file return regularly and pay royalty time to time. The petitioners are entitled to manufactured lakhs bricks per year. All of a sudden, the respondent no. 2 issued demand notices against the petitioners directing them to deposit certain amount towards less payment of royalty and also penalty. 5. All the writ petitioners were issued demand notices claiming less payment of royalty and penalty imposed thereon. 6. It is the further case that the petitioners have deposited full amount of royalty on number of bricks manufactured. It appears from the demand notices (Annexure-1 series), that such demand was raised on the basis of a report of inspection said to have done by the department. 7. It is stated that no notice whatsoever has been issued by the respondents about the date of inspection and in spite of repeated demands, the respondent no. 2 did not provide inspection report or the method of calculation of less payment of royalty and amount imposed. 8. It is the further case that respondent no. 2 neither provide any inspection report nor fixing any date or place of hearing as per Rule 41 of J.M.M.C. Rules for the purpose of fixing amount of less royalty. 9. The aforesaid notice transpires that Mines Inspector in his report dated 18.01.2019 indicated that the Kiln owner did deposit the royalty and has not obtained license for the financial year 2018-2019 and has started operating kiln. No report dated 18.01.2019 has been provided to the petitioners at any point of time. 10. 9. The aforesaid notice transpires that Mines Inspector in his report dated 18.01.2019 indicated that the Kiln owner did deposit the royalty and has not obtained license for the financial year 2018-2019 and has started operating kiln. No report dated 18.01.2019 has been provided to the petitioners at any point of time. 10. In report dated 18.01.2019, it was no-where reflected that the petitioners have violated Rule 30 & 32 of J.M.M.C. Rules. It is also no-where stated that the petitioners operating its kiln without payment of royalty and without any license. 11. It is evident from the factual aspect that the writ petitioners are carrying on their business of manufacturing of bricks and are registered dealers under Jharkhand Minerals (Prevention of Illegal Mining, Transportation & Storage) Rules, 2017. 12. It is the grievance of the writ petitioners that based upon one inspection, demand notices have been issued on the basis of the fact that amount which was deposited on behalf of one or the other writ petitioners, is less so far as royalty is concerned. 13. The basis of filing this writ petition is that copy of the inspection report which is the basis of issuance of demand notice has never been served to the writ petitioners and thereby the vital opportunity to put-forth their defence has not been provided, hence, the writ petition. 14. Learned counsel appearing for the petitioners has submitted that since the copy of inspection report has not been supplied before raising the demand on the basis of less royalty having been made by one or the other writ petitioners and hence, the non-supply of the inspection report is contrary to the principle of having adequate and sufficient opportunity to defend oneself so far as the calculation of the said demands are concerned. 15. The State has opposed the prayer made in the writ petition by filing the counter affidavit. 16. However, Mr. Mohan Dubey, learned A.C. to A.G. appearing for the respondent-State is fair enough to submit that the fact about non-supply of inspection report is not in dispute. 17. We have heard the learned counsel for the parties and gone across the pleading made in the writ petition as also the counter affidavit. 18. 16. However, Mr. Mohan Dubey, learned A.C. to A.G. appearing for the respondent-State is fair enough to submit that the fact about non-supply of inspection report is not in dispute. 17. We have heard the learned counsel for the parties and gone across the pleading made in the writ petition as also the counter affidavit. 18. The writ petition is for a direction for quashing the demand notices issued in favour of one or the other writ petitioners, whereby and whereunder, the demands notice issued based upon the calculation made by the Committee, is in consequence of less demand of amount of royalty. 19. We have found from the demand notices, appended as Annexure-1 series that direction has been given to one or the other writ petitioners to make payment of amount referred in respective demand notices within a week, failing which, the certificate proceeding will be initiated. 20. This Court, therefore, is of the view that the authority has taken decision by earmarking the quantum of amount to be paid by one or the other writ petitioners and if the same will not be paid, then the consequence will be of institution of certificate case under Bihar and Orissa Public Demands Recovery Act, 1914. 21. Hence, the requirement of providing an opportunity of hearing to the respective writ petitioners is the requirement of law so as to follow the cardinal principle of natural justice. 22. The same is the argument, based upon which, the writ petition has been filed. 23. The law is well settled by the Constitution Bench of the Hon’ble Apex Court rendered in the case of Maneka Gandhi vs. Union of India and Another, (1978) 1 SCC 248 , wherein, the proposition has been laid down that even if there is no statutory provision requiring an opportunity to be given, in order to follow the cardinal principle of natural justice, an opportunity of hearing is to be given to the party concerned who is going to be adversely affected. Such decision has been given by the Hon’ble Apex Court while dealing with Section 10(3) of the Indian Passport Act, wherein, the validity of the said provision was challenged on the ground that there is no provision to provide an opportunity of hearing before impounding the passport. 24. Such decision has been given by the Hon’ble Apex Court while dealing with Section 10(3) of the Indian Passport Act, wherein, the validity of the said provision was challenged on the ground that there is no provision to provide an opportunity of hearing before impounding the passport. 24. However, the Hon’ble Apex Court has upheld the constitutional validity of the said provision but has laid down the proposition that even if there is no provision or stipulation made in the statutory provision, then also, it will be the bounded duty of the concerned authority to provide opportunity of hearing before taking any adverse decision, for ready reference, the relevant paragraph of the said judgment needs to be referred, which reads as under: “9. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth-y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club: “We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet re-remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a ‘majestic’ conception? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance? I believe that it is very much more. If it can be summarised as being fair-play in action - who could wish that it would ever be out of action? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled; it lacks more exalted inspiration. I believe that it is very much more. If it can be summarised as being fair-play in action - who could wish that it would ever be out of action? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled; it lacks more exalted inspiration. And then again, in his speech in the House of Lords in Wiseman vs. Borneman, the learned Law Lord said in words of inspired felicity: “......that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only “fair play in action.” Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles, J. called “the justice of the common law.” Thus, the soul of natural justice is “fair-play in action” and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that “fair-play in action” demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that “fair-play in action” demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Denning, MR in these terms in Schmidt v. Secretary of State or Home Affairs “where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf.” The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations (vide American Journal of International Law, Vol. 67, p. 479). Magarry, J. describes natural justice “as a distillate of due process of law” (vide Fontaine vs. Chastarton). It is the quintessence of the process of justice inspired and guided by “fair-play in action.” If we look at the speeches of the various Law Lords in Wiseman case it will be seen that each one of them asked the question “whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded” or was the procedure adopted by the Tribunal “in all the circumstances unfair?” The test adopted by every Law Lord was whether the procedure followed was fair in all the circumstances and “fair-play in action” required that an opportunity should be given to the taxpayer “to see and reply to the counter-statement of the Commissioners” before reaching the conclusion that “there is a prima facie case against him.” The inquiry must, therefore, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?” 25. We have proceeded to examine the factual aspect in the light of the aforesaid proposition of law as also to assess the fact that if the inspection report has not been given, can it be said to be violation of principle of natural justice, as the ground has been taken in filing the writ petition. 26. We have proceeded to examine the factual aspect in the light of the aforesaid proposition of law as also to assess the fact that if the inspection report has not been given, can it be said to be violation of principle of natural justice, as the ground has been taken in filing the writ petition. 26. This Court, for the aforesaid purpose, has considered the demand notices and found therefrom that the very basis of the demand notice is the inspection report, based upon the finding of the said report, demand notices have been issued casting liability upon one or the other writ petitioners with a direction to make payment of the said amount within a week, failing which, the certificate proceeding will be initiated. 27. The aforesaid stipulation more particularly the consequence in case of non-deposit of the amount leads to institution of the certificate proceeding is having more importance, reason being that as per the Bihar and Orissa Public Demands Recovery Act, 1914, wherein, Section 3 provides by giving definition of ‘public demand’ and in case, the public demand is not being paid, a proceeding will be initiated by instituting a case before the Public Officer, thereafter, a notice is to be issued by the Certificate Officer in view of the provision of Section 7 of the Act, 1914, meaning thereby, once the certificate proceeding will be instituted, then only remedy available to the person concerned to make an objection regarding the aforesaid demand. But, that is the different aspect of the matter, since, the said opportunity is to be given only if certificate proceeding will be initiated by way of filing an objection, as required to be filed under Section 9 of the Act, 1914. 28. But, the question herein is which is the subject matter of the writ petition that what is the basis of demand and as to whether before casting liability upon such an amount on writ petitioners, the opportunity is to be provided to one or the other writ petitioners. 29. 28. But, the question herein is which is the subject matter of the writ petition that what is the basis of demand and as to whether before casting liability upon such an amount on writ petitioners, the opportunity is to be provided to one or the other writ petitioners. 29. We are of the view that the principle of natural justice is to be considered in broad-way, since, if the principle of natural justice is to be observed which means that an adequate and sufficient opportunity is to be provided to the party concerned and the moment, the adequate and sufficient opportunity is to be given which incurs a right upon the party concerned to have a document in entirety, which is the basis of such demand. 30. If the basis of calculation or decision so taken for the purpose of issuing demand notice is not being provided and merely a show cause notice is being issued without appending the inspection report, which according to our considered view, cannot be construed to be observance of principle of natural justice in entirety so as to provide an adequate and sufficient opportunity to the party concerned. 31. The fact about non-supply of the inspection report has specifically been pleaded by the writ petitioners in paragraph-16 of the writ petition. 32. The State has filed counter affidavit and while responding to statement made at paragraph-16, 20 and 21 to the writ petition, wherein, the fact about non-supply of inspection report as mentioned, has not been categorically disputed. Further, the learned counsel for the respondent-State is fair enough to submit that the inspection report has not been supplied. 33. Therefore, this Court is not hesitant to hold that while issuing the demand notices to one or the other writ petitioners by not supplying the inspection report, cannot be said to be observance of principle of natural justice in its strict adherence. 34. Hence, we are of the view that the demand notices are required to be interfered with. 35. Accordingly, the demand notices, appended as Annexure-1 series, are hereby quashed and set aside. 36. 34. Hence, we are of the view that the demand notices are required to be interfered with. 35. Accordingly, the demand notices, appended as Annexure-1 series, are hereby quashed and set aside. 36. Since, we are interfering with the demand notices on the ground of violation of principle of natural justice, hence, the requirement will be to remit the matter before the District Mining Officer, Ranchi to supply the inspection report within a period of two weeks’ from the date of receipt of copy of the order which shall be produced by the learned counsel for the respondent-State within three weeks’ from today. 37. One or the other writ petitioners individually will make objection, if any, within the period of four weeks’ from the date of receipt of inspection report. 38. The District Mining Officer, Ranchi is further directed to decide the aforesaid objection within the further period of six weeks’ from the date of receipt of such response. 39. It requires to refer herein that if one or the other writ petitioners failed to respond, the District Mining Officer, Ranchi will be at liberty to take decision in accordance with law. 40. Accordingly, the instant writ petition is allowed with aforesaid direction/observation. 41. The demand, which is the subject matter of the writ petition, will depend upon the final decision to be taken by the Certificate Officer, as directed hereinabove. 42. In consequent to disposal of this writ petition, Pending Interlocutory Applications, if any, stands disposed of.