CSA NO. 62/2008-Mubarak Hussain vs. Mining Engineer, Rajsamand & ors. Order dt:24/10/2008 1/4 S.B.CIVIL SECOND APPEAL NO. 62/2008 (Mubarak Hussain vs. Mining Engineer, Rajsamand & ors.) DATE OF ORDER : 24/10/2008 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.D.D.Thanvi, for the appellant. Mr.Rishi Vaishnav, for the respondents. 1. Heard learned counsels. 2. Though this case comes up for admission today, by the consent of counsels the case was finally heard by the Court. The substantial question of law which arises in the present second appeal for consideration by this Court is: “Whether the appellant was given an opportunity of hearing before directing him to pay a sum of Rs.18,09,000/- on account of order passed on 29/6/1995 against one Shri Kashi Ram Khatik on the basis of representation of the appellant dt.6/8/94 claiming `Bapi rights' over the mining area in question and informing the mining department that he was looking after the mining work in place of Kashi Ram Khatik?” 3. Learned counsel for the appellant Mr. D.D.Thanvi urged that CSA NO. 62/2008-Mubarak Hussain vs. Mining Engineer, Rajsamand & ors. Order dt:24/10/2008 2/4 before passing the adjudication order dated 26/8/1996 substituting the appellant in place of said Kashi Ram Khatik to pay sum of Rs.18,09,000/- in question, which is penalty ten times of the amount of royalty under Rule 48 of the MMCR, 1986, the appellant was never given an opportunity of hearing. He, therefore, submits that there was a serious breach of principles of natural justice and courts below have erred in holding that recovery in question could be made from the appellant. He relied upon the decision of this Court in case of Smt. Saroj Sharma vs. State of Rajasthan and others – 1993 (2) WLC 745 and submits that before asking the appellant to pay penalty amount in question, which was determined against one Kashi Ram Khatik, the appellant was required to be heard by the competent authority of mining department. 4. On the side opposite, Mr. Rishi Vaishnav appearing for respondents submits that in view of admission of appellant in representation dated 6/8/94 that he was claiming `Bapi' rights over the land in question and had undertaken the mining work, the demand raised against Kashi Ram Khatik was rightly sought to be recovered from the appellant. He, therefore, supports the judgments of courts below and submits that no substantial question of law arises in the CSA NO. 62/2008-Mubarak Hussain vs. Mining Engineer, Rajsamand & ors. Order dt:24/10/2008 3/4 present second appeal. 5. Having heard learned counsels and upon perusal of the impugned order dated 26/8/96, this Court is of the opinion that before the appellant may be required to pay said amount of penalty in question, he ought to have been issued specific notice giving details of said amount sought to be recovered from him. The impugned penalty order was admittedly passed against another person namely Kashi Ram Khatik and even though the appellant had represented before the mining authorities that he was doing mining work and claiming `Bapi' rights in place of Kashi Ram Khatik still it was incumbent upon the competent authority to have heard the appellant specifically with respect to details of said demand raised against said third person Kashi Ram Khatik and then pass appropriate adjudication order against the appellant himself. Therefore, the impugned order dated 26/8/1996 seeking to recover the said amount of penalty from the appellant is illegal. 6. Consequently, this appeal is allowed and while setting aside the impugned orders of courts below dated 12/11/2007 and 30/7/2004 it is directed that the Mining Engineer, Rajsamand shall afford an CSA NO. 62/2008-Mubarak Hussain vs. Mining Engineer, Rajsamand & ors. Order dt:24/10/2008 4/4 opportunity of hearing to the appellant now at this stage with respect to said demand of penalty. The appellant shall appear before the said authority, in the first instance in this regard on 18/11/2008 and thereafter the said authority is expected to pass appropriate adjudication order within a period of two months. The appellant shall cooperate with the assessment proceedings and shall not seek unnecessary adjournments. Further proceedings would naturally abide by the fresh order which would be passed by the Mining Engineer. 7. Appeal allowed. No costs. (DR.VINEET KOTHARI), J. item no.10 baweja/-