R.S. Chauhan, J.
1. The petitioner has challenged three orders, namely order dated 15.04.1989 (Ann.1), order dated 03.06.1995 (Ann.6) and order dated 16.04.1996 (Ann.8). The first order was passed by the Mining Engineer, Ramganj Mandi, District Kota whereby the Mining Engineer had imposed an excess royalty of Rs. 5,76,494/- upon the petitioner. The second order was passed by the Additional Director (Mines) whereby the Additional Director upheld the order dated 15.04.1989. Lastly, the third order was passed by the Dy. Secretary, Mines Department whereby he has confirmed the order of the Additional Director dated 15.04.1989.
2. It is the case of the petitioner that he has a mining lease for mineral lime stone (building stones) in an area measuring 4500 X 2000 Sq. Feet in village Pipa Kheri, Tehsil Ramganj Mandi, District Kota. The said licence was initially given on 11.04.1961. It was continuously renewed till 2001. According to him, he has been carrying out the mining operation as per the mining laws. According to him, he has continuously paid the royalty to the Government. However, on 06.03.1987, when his mines were inspected, certain irregularities were discovered. A copy of the Inspection Report was given to him on 20.03.1987. Immediately on 29.03.1987, he replied to the inspection report. A notice was issued on 24.06.1987 clearly pointing out the irregularities which were discovered by the Mining Engineer. According to the notice, it was felt that the returns filed by the petitioner were improper and therefore, he was asked to appear before the Mining Engineer on 09.07.1987 and to produce the relevant documents and to explain the irregularities. Although, the petitioner did not appear before the Mining Engineer, but he did submit a detailed reply to the said notice. After going through the reply, vide order dated 15.04.1989, the Mining Engineer imposed excess royalty as mentioned above. Since the petitioner was aggrieved by the order dated 15.04.1989, he filed an appeal before the Additional Director. However, vide order dated 03.06.1995, the Additional Director, dismissed the appeal. Aggrieved by the said order, subsequently, the petitioner filed an appeal before the Dy. Secretary. However, vide order dated 16.04.1996, the Dy. Secretary while confirming the order dated 03.06.1995, also dismissed the petitioner's appeal. Hence, this writ petition before this Court.
3. Vide order dated 13.09.2006, this Court had dismissed this petition on the ground that the petitioner had hidden a vital fact from the Court when the matter was argued for admission on 22.10.1996. The petitioner thereafter filed a Special Appeal before a learned Division Bench of this Court. Vide order dated 05.03.2008, the learned Division Bench remanded the case to the learned Single Bench and directed that the point taken by the petitioner before the learned Single Judge that the appeal has been decided by a person who had initiated an inquiry against him, the said point could not be raised before the learned Single Judge. In fact, the petitioner was directed to restrict his arguments to other points. Hence, this petition has travelled back to this Bench.
4. Mr. Vimal Chaudhary, the learned Counsel for the petitioner, has vehemently argued that Rule 38 of the Rajasthan Minor Mineral Concession Rules, 1986 ('the Rules', for short) deals with the assessment of royalty, and Rule 39 of the Rules deals with the best judgment assessment. According to Sub-clause (4) of Rule 38 of the Rules, the Assessing Authority may permit the assessee to produce documents 'pertaining to the assessment year and the last five years preceeding the assessment year as the assessing authority may require.' Thus, according to the learned Counsel while assessing the royalty, the Assessing Authority is permitted to consider the documents of the relevant year and the documents of last five years preceeding the assessment year. Therefore, the Assessing Authority cannot look into a document subsequent to the assessment year. However, a bare perusal of the order dated 15.04.1989 clearly shows that although the Assessment Year was 1986-87, but the Assessing Authority has considered the production of 1987-88 in order to conclude that the assessee had wrongly shown the production of the year 1986-87. Therefore, the Assessing Authority has considered the production of a year after the assessment year. Hence, the basis of the best judgment assessment is misplaced.
5. Secondly, that the entire inquiry has been carried out without giving an opportunity of hearing to the petitioner. For, the petitioner was neither permitted to cross-examine the witnesses of the Department, nor granted any opportunity to produce any witness to substantiate his case. The entire assessment order has been passed on the basis of the report of the Mining Engineer and on the basis of reply submitted by the petitioner. Hence, the right under the principles of natural justice have been violated.
6. Thirdly, as far as the order dated 03.06.1995 and the order dated 16.04. 1996 are concerned, the learned Counsel has contended that both these orders have been passed in a mechanical manner without due application of mind. Therefore, they are unsustainable and deserve to be set aside.
7. On the other hand, Mr. Krishan Verma, the learned Addl. GA for the State, has contended that the Mining Engineer was certainly justified in issuing the notice dated 24.06.1987. For, on 06.03.1987 when the inspection of the mine was carried out, large number of irregularities were discovered by the Mining Engineer. Therefore, it was observed by the Department that whatever documents were submitted by the assessee, they do not reflect the correct production. Hence, prima faice, the correct royalty was not being paid to the Government.
8. Secondly, Rule 38(4) of the Rules does not impose a bar on the power of the Assessing Authority to look into the production of the assessee after the assessment year. Rule 38(4) of the Rules merely permits the Assessing Authority to direct the assessee to produce his documents for the assessment year as well as to produce his documents for the last five years preceeding the assessment year. However, there is no clear cut bar which prevents the Assessing Authority from demanding the documents of subsequent years from the assessment year. Therefore, no absolute bar has been made in Sub-clause (4) of Rule 38. Even if, for the sake of arguments, the Assessing Authority could not have considered the production of the year 1987-88, but, even then the production of 1985-86 clearly reveals that there was an unusual fall in the production in the year 1986-87. The un-natural fall has not been explained by the assessee. Therefore, best assessment judgment is legally justified.
9. Thirdly, after the notices were issued, a detailed reply was filed by the assessee. The petitioner never submitted any application before the Mining Engineer for producing any evidence in defence. Moreover, as the Department did not produce any witness, therefore the question of cross-examining a witness does not even arise. Furthermore, since a detailed reply was already submitted by the petitioner, he is pre-empted from claiming that his rights under the principles of natural justice have been violated.
10. Fourthly, a bare perusal of the order dated 15.04.1981 clearly reveals that the Mining Engineer has meticulously discussed the entire evidence. The orders dated 03.06.1995 and 16.04.1996 have discussed merely questions of fact. Since under its writ jurisdiction, this Court does not sit as an appellate Court, it cannot re-appreciate questions of facts. Hence, the Court should not interfere with the impugned orders.
11. Fifthly, the order passed by the Additional Commissioner has also discussed the evidence in detail. Thus, the order has not been passed in a mechanical manner.
12. Sixthly, the order passed by the learned Dy. Secretary, need not have been a detailed one, as the Dy. Secretary was merely agreeing with the reasoning given by the Additional Commissioner. It is a settled principle of law that when a superior authority agrees with the findings of the subordinate authority, it need not pass a detailed order.
13. Heard learned Counsel for the parties and perused the impugned orders.
14. Rule 38 of the Rules is as under:
Assessment of royalty : (1) Assessment and determination of royalty due from an assessee during an assessment year or as required shall be made by assessing authority after the returns in respect of that year have been filed by the assessee as required under terms and conditions of the lease deed or the statement of production, despatches or consumption has been submitted by the person concerned or upon checking the stock of the mineral dealer:
Provided that the assessing authority may make provisional assessment for a particular period during the assessment year after the receipt of statistical returns in respect of that period.[(1A)] Notwithstanding anything contained in Sub-rule (1), an assessee of royalty covered under the 'Scheme of Self Assessment', approved from time to time by the Government, shall be deemed completed, without being called for the records of the assessee and without being passed of a formal assessment order by the assessing authority on the basis of the returns filed, statements submitted and amount of royalty or other sum(s) deposited.]
(2) For the purpose of assessment of royalty as mentioned in Sub-rule (1) the assessee shall submit monthly returns in Form No. 11A by 15th of the following month and annual returns in Form No. 11 within one month from the date of expiry of the assessment years:
Provided that for the purpose of this sub-rule, the assessing authority may fix a date on which, the place at which the assessee shall produce such records as may be required by it in respect of production, removals, consumption and stocks bills of sales, labour attendance, payments and any other account books connected with these matters.(3) If the assessee fails to submit returns as required under Sub-rule (2) or the returns filed appear to be incorrect, the assessing authority may hold such inquiry as it may deem fit and assess royalty for the assessment year to the best of its judgment:
Provided that the assessing authority shall give reasonable opportunity of being heard to an assessee before taking any action under this sub-rule.(4) For the purpose of Sub-rule (3) the assessing authority may serve a 15 days notice upon the assessee requiring him to appear in person or by an agent duly authorised in writing on a date and at place specified in notice and to produce or cause to be produced any evidence on which the assessee relies in support of the correctness of the returns or statements and records furnished by him or produce or cause to be produced such accounts or documents pertaining to the assessment year and the last five years proceeding the assessment year as the assessing authority may require.
(5) On the day specified in the notice given in Sub-rule (4) or on any other day thereafter which the assessing authority may fix, the assessing authority, after hearing and considering the evidence as may be produced by the assessee in this behalf and such other evidence and documents as the assessing authority may require, shall make an order in writing of assessment of royalty payable by the assessee.
(6) [ ]
15. A bare perusal of Rule 38(4) of the Rules clearly reveals that it merely empowers the Assessing Authority to direct the assessee to produce or cause to be produced such documents pertaining to the last five years preceeding the assessment year, as the Assessing Authority may require. Thus, it is in the enabling provision. The said sub-clause does not contain any bar preventing the Assessing Authority from calling for any document of the years subsequent to the assessment year. Moreover, it does not prevent the assessee from submitting such a document pertaining to the years subsequent to the assessment year. Most importantly, Rule 38(5) clearly states that assessing authority may consider 'such other evidence and documents as the assessing authority may require.' Thus, the assessing authority is empowered to call for documents of years subsequent to the assessment year, if he so requires. Since a bar is not contained in Rule 38(4) of the Rules, the same cannot be read into the said sub-rule. After all, one of the rules of interpretation is that a prohibition cannot be read into a provision until and unless it is expressly state by the legislature. Therefore, the contention raised by the learned Counsel for the petitioner claiming that the Assessing Authority could not have seen production for the assessment year 1987-88, as the assessment was made for the year 1986-1987 is without any merit.
16. Even if for the sake of arguments, the contention ere to be accepted, even then a bare perusal of order dated 15.04.1989 clearly shows that in the year 1985-86, 70,498.79 tonne of stone was carried out from the mine; in the year 1986-87, the production had suddenly fallen to 64,657.93. This sudden fall in the production has not been explained properly by the assessee through cogent evidence. Thus, the Assessing Authority was justified in holding that the sudden fall is not created by market forces, but is an un-natural fall created by the assessee in order to escape the payment of royalty. This conclusion is further fortified by the irregularities which were discovered by the Mining Engineer on 06.03.1987.
17. Admittedly, on 24.06.1987, the Mining Engineer had issued a notice to the petitioner wherein he had clearly revealed the irregularities which were discovered by the Mining Engineer on 06.03.1987. He had further called upon the petitioner to submit all the relevant documents to prove the fact that no irregularities were committed by the petitioner. In response to the said notice, admittedly the petitioner had filed a detailed reply on 04.7.1987. There is not an iota of evidence to show that subsequently the petitioner had sought personal hearing, or had sought to produce any witness, or sought to produce further documentary evidence to substantiate his defence. Thus, a plea that his rights under the principles of natural justice have been violated is without any substance.
18. A bare perusal of the order dated 03.06.1995 clearly reveals that the Additional Director had not only noted the contention raised by the petitioner in his appeal, but had also meticulously discussed the evidence in his order. Therefore, the contention that the said order has been passed in a mechanical manner is baseless.
19. Moreover, the order dated 16.04.1996 has noted the contention raised by the petitioner. Although the said order is not a detailed one, but when the appellate authority agrees that the subordinate authorities, it is not required to discuss the entire evidence threadbare in its order. Therefore, the order dated 16.04.1996 is neither perverse, nor illegal.
20. In this view of the matter and in the facts and circumstances of the case, the writ petition is devoid of any merit; it is, hereby, dismissed. There shall be no order as to costs.