1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.2088/2000. : : Kailash Chand Mangla through his LR's. Vs. State of Rajasthan & Ors. : : Date of Order 28.4.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. M. B. Sharma and Mr. R. N. Dixit for the petitioner. Mr. Zakir Hussain, Addl.Govt.Counsel for the State. Reportable 1. This writ petition has been filed by the petitioner challenging the order dated 25.3.2000 whereby revision petition filed by him before the Government against the order dated 27.2.1999 passed by Additional Director (Mines), Jaipur was rejected. Petitioner has also challenged order dated 27.2.1999 whereby his appeal against the order dated 20.4.1990 passed by Mining Engineer (Vigilance) was rejected. Learned counsel for the petitioner in the course of arguments has sought to challenge validity of order dated 20.4.1990 passed by Mining Engineer (Vigilance) on the premise that since this order has been merged with the 2 aforesaid order, therefore, it is also liable to be quashed. 2. The order of Mining Engineer (Vigilance) was initially challenged by petitioner before Government by way of filling revision petition under Rule 47 of Rajasthan Minor Mineral Concessions Rules, 1986 (for short “the Rules of 1986”). The Government has rejected the revision as being not maintainable whereas the writ petition filed by the petitioner being SB Civil Writ Petition No.2179/1993 was allowed by judgment of this Court on 18.1.1994 and matter was remanded to State Government. The Government this time held that matter should first receive consideration by Additional Director (Mines) and, therefore, further remanded the matter. It was an appeal against the order of Mining Engineer (Vigilance) and remanded the same by order dated 27.2.1999 where against revision petition of writ petitioner was dismissed by order dated 25.3.2000. 3. Learned counsel for the petitioner argued that Mining Engineer (Vigilance) erred in law in holding that stock of lime stone lying at National Highway No.8 close to village Pragpura belonged to petitioner and that it was transported from the mining area leased out to petitioner without 3 issuance of ‘ravanna’. Learned counsel submitted that there was no basis on which it could be held that such stock of lime stone originated from the mining area of petitioner, which was located in village Panch Pahari and Todra 12 kms away from the disputed site. Petitioner was not associated with proceedings of ‘panchnama’ of the alleged mineral and that it was entrusted to a third person on ‘supardginama’. The Mining Engineer (Vigilance) has no jurisdiction under the Rules of 1986 to conduct the proceedings. Whatever mineral was dispatched by petitioner was duly entered in the dispatch register wherein the number of ravanna, truck number, quantity of mineral, bill and name of party are mentioned. Copy of dispatch register was duly produced before the Mining Engineer (Vigilance) and were mentioned in the show cause notice dated 8.1.1990. All the points in the show cause notice were duly replied by the petitioner on 29.1.1990, which have not been considered by Mining Engineer (Vigilance) in true prospective. It was contended that as and when goods were dispatched duly filled up ravannas and bills were handed over to driver of vehicle. Learned counsel relied on proviso to Rule 68 (5) of the Rules of 1986 and argued that at the best, even if it is assumed that mineral originated from the mining area of petitioner, respondent could charge 4 from him the amount of royalty. The respondents have illegally invoked Rule 18 (9) and Rule 48 (5), which are not at all applicable. According to first Proviso of the said Rules, 12 times penalty would be imposed only if the mineral is excavated from unauthorized area, but not, as per the admitted case of the petitioner, if it is transported from the area leased out to someone. Learned counsel submitted that even according to second proviso to Rule 48 (5), the Officer seizing the mineral was required to give a receipt thereof to the person from whose possession the mineral was so seized and the Magistrate of the area. No such compliance was made by the authority. Learned counsel in support of his arguments relied on the judgment of this Court in Khan Mohammed Vs. Union of INida & Ors : WLN (UC), 1978, 327 and Smt. Saroj Sharma Vs. State of Rajasthan & Ors. : SB Civil Writ Petition No.2826/1992 decided on 23.9.1993. It was also argued that Government had remanded the matter to Additional Director for fresh enquiry, but no such enquiry was made by him and yet the matter was decided. Learned counsel referred to application submitted by petitioner dated 9.3.1999 to Mining Engineer (Vigilance) and copy of stock register and argued that it was clearly explained by petitioner that he had an agreement for supplying the lime stone to M/s 5 Rajasthan Mineral, Pragpura and all the minerals, would have to be supplied within the State of Rajasthan as would be evident from the stock register. The Mining Engineer did not at all hold enquiry on this aspect of the matter that the goods actually belonged to M/s Rajasthan Mineral, Pragpura and, therefore, if the ravanna, which was sent along with goods to M/s Rajasthan Mineral, Pragpura for the facility of reference and further for the interest of truck owner, if the mineral are transported to same other place therefrom, the petitioner cannot be held responsible. 4. Shri Zakir Hussain, learned Additional Government Counsel has opposed the writ petition and submitted that petitioner was duly served with a notice prior to passing of impugned order of penalty. Reply of petitioner was obtained. Not only reply but certain clarifications were also obtained therefrom. Learned counsel referred to subsequent letter dated 16.2.1990 written to petitioner by Mining Engineer demanding certain clarifications. It was contended that petitioner apart from submitting reply adduced evidence in the shape of various documents, which were all taken into consideration. Petitioner did not raise any objection with regard to alleged non-supply of documents nor did he raise 6 such plea even in the appeal. It is submitted that Assistant Mining Engineer, Jaipur and Mining Engineer (Vigilance) alongwith Foreman made inspection of the stock of minerals of petitioner situated at Pragpura at National Highway No.8 on 20.12.1989. On enquiries made from the witnesses present at the spot, it was found that stock belonged to petitioner. Inspecting Party also came to know that all the stocks were being brought from the mining lease area of the petitioner and collected there. There was approximately 1000 mt limestone and no record was produced. The stock was given in supurdagi of Laxman S/o Bhura Mal. Petitioner was served show cause notice on 16.2.1990. It was also stated that from time to time inspection was made and it was found that petitioner was excavating minerals from out side the leased area. Petitioner was collecting minerals at Pragpura and selling the limestone from that place. Yet in some of the cases, ravannas were shown as issued with respect of such minerals sold from the mining area itself. Petitioner was required by letter dated 23.12.1989 to submit certain documents, which he did not do. It is contended that ravannas No.311151 and 311152 were issued, which were seized from truck drivers. In column No.3 petitioner mentioned that the stock belonged to petitioner himself. 7 Apart from this, petitioner has also in his letter dated 9.3.1990 has clearly admitted that at the time of inspection 980 tones limestone was available in the stock, therefore, contention that mineral did not belong to petitioner is absolutely incorrect. Learned counsel referred to Rule 18 (a) (c) of the Rule read with Rule 48 (2) of the Rules of 1986 and argued that mineral was always required to be dispatched with ravanna and if that is done without ravanna it is considered as illegal excavation. It is contended that proviso to sub-rule 5 of Rule 48 has rightly been invoked and that contention of petitioner that Rule 68 (5) would apply in such a situation is not correct. Learned counsel submitted that Appellate Authority as well as Revisional Authority have both examined all such arguments raised before them and have held that order passed passed by Mining Engineer was prefect, just and reasonable. It is, therefore, prayed that this writ petition be dismissed. 5. I have given my anxious consideration to rival submissions made before me and perused the material on record. It is evident from the show cause notice dated 23.12.1989 that a comprehensive notice was given to petitioner calling upon him to give explanation. The show 8 cause notice required the petitioner to explain why the stock of 1000 tones of mineral was made 12 kms away from the mining area and why such mineral was dispatched without ravannas. The show cause notice stated that when the mining area of petitioner was inspected three trucks were found carrying minerals from the mining area to stock at Pragpura. One truck No.RNE 4089 was found at Gujariya-ki- Dhani, which had the mineral loaded, but without any ravanna. The truck driver Papu Sultan flayed away from the place. Another truck No.RJV-4531 full of mineral was standing in the mining area, driver of that truck also flayed. Third truck No.RJA-7369 has recently came from Pragpura by delivering the stock. Yet another truck No.RNB-7941 was checked at National Highway and similarly truck No.RNG- 2111 and RRZ-2779 also checked driver of first truck admitted having brought the mineral from Pragpura stock, but ravannas accompanied with the said stock were not correct. The drivers of other two trucks though admitted having brought the goods from Pragpura stock, but admitted that the minerals were carried from mining area to Pragpura without any ravannas. They informed that they used to frequently carry the minerals from that stock. The ravannas with these trucks indicated that all the three ravannas issued 9 by one person on 20.12.1989, but his signatures were not tallying with one another. It also showed that ravanna used to be issued from Pragpura stock and not from mining area. Petitioner replied to show cause notice, but asserted that trucks and drivers thereof referred to para No.2 of show cause notice were not related to him. Petitioner completely disowned that stock of Pragpura belonged to him and contended that whenever they have sold the minerals, it was only against ravanna. Petitioner produced with reply copy of dispatch register. At that stage, with a view to improving his case petitioner submitted that he has an agreement with one Rajasthan Mineral, Pragpura according to which whatever goods were supplied within the State of Rajasthan, would be sold to Rajasthan Mineral, Pragpura only. However, they could sale the limestone to parties outside the State. Petitioner although disowned the stock but clearly admitted that on the day when the inspection was carried out by the respondents 980 tonnes minerals was available in the said stock. Learned counsel for the petitioner has although sought to explain that with reference to entries made in dispatch register where the Rajasthan Mineral, Prgapura was made party to whom the mineral was dispatched, but no argument was made as to who is owner 10 of Rajasthan Mineral, Pragpura despite saying that it was a proprietor firm. He also could not show if any agreement was produced before any of the authorities below. If at all what is contended were to be believed, petitioner was required to produce the copy of alleged agreement and identify the alleged owner of the proprietor-ship firm. Further contention is that panchnama report should have been supplied to petitioner and that if it is assumed that stock belonged to petitioner, he should have been given a receipt of such stock as provided by Second Proviso to Rule 85 (2). It has not been shown that petitioner ever demanded and was yet not supplied copy of panchnama. The respondents have contended that when an enquiry was made from the persons available near the stock and especially from Matadeen Yadav and Laxman Bhuramal Mali, it was informed that Rameshvar Jangid 'munim' of petitioner was looking after the stock and he had personally gone to mining area. When the team went to mining area, it is clearly noted that Rameshvar Jangid was not found present there, thus presumed that he was present at Pragpura, but when inspection party was arrived there he flayed from the place. Respondents have maintained that Ravannas No.311151 and 311152 issued on 20.12.1989 in column No.3 11 thereof clearly indicated goods belonged to petitioner himself. In fact, improved version of petitioner does not inspire confidence because show cause notice was replied by him on 4.1.1990 and he sought to produce the dispatch register on 29.1.1990. The Mining Engineer later on 16.2.1990 pointedly put to petitioner that ravannas No.311151 and No.311152 both dated 20.12.1989 have originated from Pragpura stock and in column No.3 thereof indicated that goods belonged to mining area of petitioner and, therefore, contention of petitioner that stock at Pragpura was not his, cannot be accepted. Petitioner was pointedly asked to give clarification and he could not give any satisfactorily clarification. In the face of all these facts, findings recorded by Mining Engineer and approved by Mining Engineer cannot be held to be erroneous or otherwise perverse. Contention raised by petitioner are liable to be rejected. It also cannot be said that petitioner was not given opportunity of hearing and compliance of principles of natural justice was not made. The judgment of this Court in Khan Mohammed (supra) and Smt. Saroj Sharma (supra) are not applicable to the facts of the present case. 12 6. Argument that Rule 18 (9) (c) of the Rules of 1986 would not be applicable to the facts of the present case cannot be accepted because Rule 18 (9) (C) provides that the lessee or any other person shall not remove or dispatch mineral from the mines and quarries without ravanna from the lease hold area in Form No.12 and duly sealed by the department. Very wordings of this clause clearly show that this will apply to a situation where minerals are removed or dispatched from the mines without ravanna. Contention that according to proviso (2) of Rule 68 (5) only one time royalty and not 12 time royalty could be charged will have to be examined by reading Rule 68 (5) and Rule 48 (5) together. Rule 68 (5) provides that : “If the officer incahrge of the check post or any other officer mentioned in sub-rule (2) above has a reason to believe that royalty is likely to be evaded in respect of any mineral liable to assessment for royalty, such officer, may require the owner or person incharge of the vehicle to pay an amount equal to 10 times the amount of royalty payable on the mineral in accordance with Schedule-I.” Proviso to Rule 68 (5) states that : 13 “If the mineral is not covered by a rawanna and the officer incharge is satisfied that the mineral had been brought from an area granted lease/quarry license or from an area granted on short term permit under these rules, he may recover royalty on such mineral which shall be adjusted against the final assessment thereof.” This proviso further additionally provides that : “Where on weighment or by measurement at the check post it is found that the entire quantity of mineral is not covered by the rawanna, the amount of royalty on such difference, shall be recovered by the officer incharge of the check-post.” Sub-rule (2) of Rule 68 also takes care of one of the arguments of petitioner that Mining Engineer (Vigilance) had no authority to undergo survey or inspection. Rule 68 (2) provides that : “The Director, Superintending Mining Engineer, Mining Engineer, Superintending Mining Engineer (Vigilance), Mining Engineer (Vigilance), Assistant Mining Engineer or nay other officer authorised by any of them in this behalf may check a vehicle carrying the mineral at any place and the owner or the person incahrge of the vehicle shall furnish a valid Rawanna in 14 the prescribed form and other particulars such as bill as demanded by the officer.” Here in the instant case, it has clearly came on record that Mining Engineer (Vigilance) and Assistant Mining Engineer both checked number of vehicles at National Highway No.8 and discovered that minerals carried thereunder were lifted from Prgapura stock and on further enquiry it transpired that those minerals originated from mining area of petitioner without ravannas and ravannas were actualy issued from Pragpura stock. Imposition of 12 time penalty is thus supported by the authority given to Mining Engineer (Vigilance) not only with reference to Rule 68 (5), but also by Rule 48 (5), which likewise provides that : “(5) Whenever any person without a lawful authority or in contravention of the terms and conditions of the mining lease/quarry license, short term permit or any other permit raised any mineral from any land and for that purport bring on the land any tool, equipment, vehicle or other thing such mineral, tool equipment vehicle or other thing may such mineral, tool, equipment, vehicle or other thing be seized by the authorities mentioned in sub-rule (4).” 15 Contention of petitioner is that Rule 48 is applicable only in a situation where the unauthorized excavation is carried out from a mining area and in this case since the petitioner has been granted lease, it could not be said to be case of unauthorised excavation, but then this contention has to be examined by a reading of sub-rule (1) of Rule 48 with sub-rule (2), which has taken care of the situation like this one by providing that : “(2) The lessee or any other person shall not remove or dispatch mineral from the mines and quarries without rawanna for the lease hold area in Form No.12 and duly sealed by the department.” In other words, what the rule making authority has provided is that minerals, which are removed or dispatched from the mines and quarries without ravanna is also taken as unauthorized working of the mine thereby attracting the provision of Rule 48. Sub-rule (5) of Rule 48 also in its first proviso provides that : “Where mineral so raised has already been dispatched or consumed, the authorities mentioned in sub-rule (4) may recover cost of the mineral along with 16 rent, royalty or the tax chargeable on land occupied or mineral excavated which will be computed as 12th times the royalty payable at the prevalent rates.” It may be noticed that 12 times penalty in the first proviso to Rule 48 (5) and second proviso to Rule 68 (5) has been by subsequent amendment vide notification dated 12.8.1994 reduced to 10 times. Thus, all the aforenoted contentions of petitioner also do not have any merit. In the result, I do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.H/3.