CIVIL WRIT JURISDICTION CASE No.638 OF 2007 With Civil Writ Jurisdiction Case No. 1018 OF 2007 --- In the matter of applications under Article 226 of the Constitution of India. C.W.J.C. No. 638 OF 2007 RABINDRA KUMAR son of late Bhubneshwar Prasad Sharma, resident of village- Sare, P.S. Sare, District Nalanda at present Rajendra Nagar, R.K. Avenue, Police Stateion, Kadamkuan---(Appellant) Versus 1. THE STATE OF BIHAR 2. The Certificate Officer, Nalanda at Biharsharif. 3. The Certificate Officer, Asthawan Block, District- Nalanda. 4. The Assistant Mining Officer, Nalanda at Biharsharif----------------(Respondents) With CWJC No.1018 oF 2007 RABINDRA KUMAR, son of late Bhubneshwar Prasad Sharma, resident of village Sare, P.S. Sare, District Nalanda at present Rajendra Nagar, R.K. Avenue, Police Station, Kadamkuan, District Patna ---------------------(Appellant) Versus 1. THE STATE OF BIHAR 2. The Certificate Officer, Nalanda at Biharsharif. 3. The Certificate Officer, Asthawan Block, District- Nalanda 4. The Assistant Mining Officer, Nalanda at Biharsharif--------------(Respondents) ---- For the Petitioner: Mr. Sidhendra Narayan Singh, ( In both cases ) Advocate For Respondent (Mines):Mr. V.M.K. Sinha,Advocate (In both cases ) For the State : Mr. A.D. Dwivedi,A.C. to (In CWJC No.1018/2007) G.P.13. P R E S E N T THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA - 2 - R.K.Datta,J. Heard learned counsel for the petitioner and learned Special P.P., Mines. The petitioner seeks quashing of the entire proceedings of Certificate Case Nos.62 of 1990-91 and 23 of 1991-92 pending in the Court of Certificate Officer-cum- Circle Officer, Asthawan, Nalanda. The short undisputed facts of the case are that in course of inspection on 4.2.1988, it was found that the petitioner was running a brick-kiln in the year 1987-88, in which 43 labourers were engaged to mould the bricks and it was estimated that as many as 30,000 bricks were moulded and moulding equipments of bricks were also found on the spot. It was also found that the petitioner was running the brick-kiln without valid permit/licence. Accordingly, the Mines Inspector submitted his report only on 22.2.1988. On receipt of the inspection report, the Assistant Mining Officer, Nalanda at Biharsharif sent a notice dated 24.2.1988 to the petitioner directing him to pay an amount of Rs.7970/- as royalty - 3 - by 7.3.1988 and also to take licence, failing which criminal proceedings would be taken under Rule 40 of the Bihar Minor Minerals Concession Rules, 1972. Similarly, an inspection was made on 1.2.1989 by the Mining Inspector and it was reported that 56,000 bricks have been moulded in the said year on the basis of which a demand for Rs. 7917/- in the same terms was made by letter dated 18.2.1989 directing the petitioner to pay the amount by 20.2.1989. The case of the petitioner is that he had received notice dated 3.9.1990 on 19.9.1990 raising a demand of Rs.11,315/- referring to earlier notices dated 24.2.1988 and 2.8.1988 to which he immediately filed his reply on 19.9.1990 stating that he had never received any such earlier notice nor he was running any brick-kiln manufacturing bricks. According to the petitioner, no action was taken. Thereafter, suddenly he received notice from the Certificate Officer in Certificate Case Nos. 62 of 1990-91 and 23 of 1991-92. In both the cases, he appeared and filed objection on 1.9.1992 denying the - 4 - liability reiterating the objection that he had made earlier before the Assistant Mining Officer. Thereafter by order dated 23.9.1992, the Certificate Officer called for comments from the Assistant Mining Officer with respect to the objection raised by the petitioner. The said objection was not disposed of and suddenly on 4.10.2006, the Certificate Officer passed an order for issuance of warrant against the petitioner after a lapse of 14 years. Learned counsel for the petitioner submits that the entire proceedings are without any basis as the liability has been fixed against the petitioner behind his back and without considering the objections raised by him at the earliest before the Assistant Mining Officer. It is urged by learned counsel that the said action of the Assistant Mining Officer is violative of the principles of natural justice, as the petitioner at the outset made it clear that he is an advocate by profession and is not at all concerned with running of any brick-kiln for the manufacturing of bricks. The said objection - 5 - of the petitioner was not considered and straightaway requisition was made to the Certificate Officer. It is also submitted by learned counsel that the Certificate Officer has also acted in violation of the provisions of the Bihar Public Demand Recovery Act by issuing a warrant of arrest against the petitioner after a lapse of 14 years, when he had earlier sought comments from the Assistant Mining Officer on the objection filed by the petitioner and without disposing of the said objection petition. Learned counsel further relies upon paragraph No.10 of the Board of Revenue instructions under the Public Demand Recovery Act in which it was provided that certificate procedure is not to be used where there is any doubt of debtor’s liability; the requiring officers are to bear in mind that the certificate procedure is intended only for the recovery of sums regarding which there is no doubt of the liability of the debtors, and cases in which the debtor is contesting with some show of reason to deny - 6 - his liability, should be reported with a view to institution of civil suits. It is submitted by learned counsel that since the petitioner had denied his liability at the earliest before the Assistant Mining officer, it was not open to him to have filed a requisition before the Certificate Officer and at best the authorities should have instituted a civil suit against him in terms of the said instructions contained in paragraph No.10. Learned Special P.P., Mines, on the other hand, submits that the authorities have rightly acted in the matter on the basis of inspection carried out by the Inspector of Mines in which it was found that the petitioner’s brick-kiln was in the process of manufacturing bricks in which labourers were engaged and the implements for the moulding of bricks were also found and thus the authorities of the Mines were justified in raising the demand against the petitioner and on his non-payment of the same to have taken steps to recover the same under the certificate proceedings. - 7 - It is also submitted by learned counsel that the petitioner has a remedy of appeal against the order of the Assistant Mining Officer raising the demand of royalty and cess against him which he has not done and thus he is not entitled to challenge the recovery of the said demand by certificate proceedings. On a consideration of the rival submissions of learned counsels for the parties, this Court finds that although the demand was raised by the Assistant Mining officer on the basis of an inspection carried out by the Inspector of Mines but before assessing the said demand, it was incumbent upon the Assistant Mining officer to have issued notice to the petitioner and given him an opportunity to put forward his case and only thereafter, the liability of the petitioner for payment of royalty, cess, etc. should have been fixed. That not having been done, the order dated 24.2.1988 directing the petitioner straightaway to pay the amount has been passed in violation of the principles of natural justice and is liable to be quashed. - 8 - The contention of learned Special P.P., Mines that the petitioner had an opportunity for filing an appeal against the orders dated 24.2.1988 and 18.2.1989 which he has not availed of and thus he has no right to challenge the subsequent recovery proceedings before the Certificate Officer, has no legs to stand because there has to be a compliance with the principles of natural justice at the stage of adjudication by the authorities of the State. If there was a violation of the same in determining the liability at the first stage by the Assistant Mining Officer, the same will not stand cured merely on the petitioner availing of the opportunity of appeal at the appellate stage. More so, admittedly the petitioner even in the notice issued has been shown as an advocate and has denied that he was the owner of the brick-kiln in question. This Court, however, does not find any force in the submission of learned counsel for the petitioner regarding the applicability of paragraph No.10 of the Board’s Instruction. So far as the collection - 9 - of royalty, cess, etc. by the Mining Department is concerned, the authorities are entitled to fix the same after following the due process of law and on failure to make payment, they can recover the same through certificate proceedings and for recovery of royalty and cess, the Mining Department cannot be forced to take recourse to civil suit, merely because there is denial of liability. Provision has also been made for appeal against the order of the Assistant Mining Officer and once the liability becomes quantified and acquires finality the appropriate procedure would be recovery of the same through the certificate proceedings. Thus, the contention of learned counsel for the petitioner in this regard must be rejected. In view of the fact that I have held that the initial orders fixing the liability have been passed in violation of the principles of natural justice and they are liable to be quashed it is not necessary to consider the contention of learned counsel for the petitioner that the objection under - 10 - Section 9 of the Public Demand Recovery Act was not disposed of before issuance of warrant of arrest by the Certificate Officer. In the result, the writ applications are allowed. The orders dated 24.2.1988 and 18.2.1989 passed by the Assistant Mining Officer, Nalanda-cum-Nawadah are quashed. Consequentially the certificate proceedings initiated for recovery of the amounts pursuant to the said orders, namely, Certificate Case No.62 of 1990-91 and 23 of 1991-92 are both also quashed. However, it would be open to the Assistant Mining Officer to proceed afresh in the matters by issuing notice to the petitioner and fix the liability, if any, after providing an opportunity to the petitioner to be heard. Patna High Court Dated 13th July,2010 NAFR/VPS. ( Ramesh Kumar Datta, J. )