Judgment:
R.R. Yadav, J.
1. The petitioner has filed the present writ petition challenging the notice for demand based on re-assessment of royalty issued by Assistant Mining Engineer, Banswara, Anx. 8 to the writ petition seeking a relief to quash the same on the ground inter-alia that impugned notice of demand is exfacie invalid according to Rule 41 of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred as Rules of 1986) and also against the principle of natural justice and fair play.
2. The facts leading up to filing of the present writ petition are that the petitioner was granted a mining lease for mineral marble on 26.8.1982 and he is carrying on mining operation till today.
3. It is averred in the writ petition that the royalty was assessed for the assessment periods from 26.8.87 to 25.8.88 and from 26.8.88 to 25.8.89 on 6.2.90, copies whereof of both assessments are filed alongwith the writ petition and are marked as Anx. 1 and Anx. 2 respectively.
4. In pursuance of assessment dated 6.2.90 about the aforesaid period, two demand notices of Rs. 99,155/- and Rs. 1,55,668/- were issued by respondents to the petitioner and he paid the due royalty such nothing is due.
5. It is also specifically averred that assessment from 6.8.89 to 25.8.90 was also completed and royalty demanding Rs. 1,24,443/- was issued to the petitioner and he has paid the aforesaid amount, a copy whereof is filed and marked as Anx. 3 to the writ petition.
6. It is stated in the writ petition that the respondents are authorised to reassess royalty of previous year if it is incorrectly assessed withing the meaning of Rule 41 of the Rules of 1986 after affording an opportunity of hearing to the petitioner but in the present case opportunity of hearing has been denied to him.
7. After service of notice, the respondents have filed a joint return denying the averments made in the writ petition in its present form although it has not been specifically alleged that the reassessment of royalty amounting to Rs. 99,087/- was levied upon the petitioner after giving opportunity to him.
8. I have heard the learned Counsel for the parties and perused Anx. 8, reassessment of royalty creditting an additional amount of Rs. 99,087/- against the petitioner.
9. In my opinion, it goes without saying that the law must now be taken to be well-settled that even in an administrative proceedings which involve civil consequences, the doctrine of natural justice must he held to be applicable. In all such cases courts of law are required to pose a question: 'does fairness in action demand that an opportunity to be heard should be given to the person affected ?' After posing the aforesaid question to the facts and circumstances of the present case, I am of the view that the re-assessment of royalty by the respondents which has serious civil consequences requires a reasonable opportunity of hearing to the petitioner which has been denied to him.
10. In abundant caution it is held that the principles of natural justice are to be extended even in those cases where there are no positive words in a Statute requiring that the party shall be given a reasonable opportunity of being heard provided such orders lead to civil consequences. In such Enactments or Statutory Rules the common law would supply the omission of Legislature and Rules making Authority and an argument contrary to it is not acceptable.
11. For deeper understanding of the controversy involved in the present case, Rule 41 of the Rules of 1986 are reproduced below for ready reference:
41.--Assessment of royalty incorrectly assessed--(1) If for any reason, the whole or any part of the despatches of mineral from the leased area or consumption of mineral within the leased royalty or was assessed at a low rate in any year, the assessing authority may serve a notice upon the assessee in the Form No. 13 and may proceed to assess or reassess the correct amount of royalty:
Provided that nothing in this sub-rule shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment.
(2) No notice under Sub-rule (1) above shall be issued in respect of despatch and consumption of mineral for any year after expiry of five years from the date of relevant assessment:
Provided that this rule shall not apply for any assessment or reassessment made in consequence of, or to give effect to any finding or direction contained in (or) an order of appeal or revision or in an order of any competent court.
12. A close scrutiny of the provisions envisaged under Rule 41 of the Rules of 1986 reveal that under Sub-rule (1) of Rule 41 of the said Rules the respondents are required to serve a notice upon the assessee in the Form No. 13 before making reassessment of royalty or in correcting any royalty assessed by them in past. The aforesaid provision for giving notice to an assessee under Sub-rule (1) of Rule 41 of the Rules of 1986 presupposes a reasonable opportunity of hearing to the petitioner in the present case.
13. Learned Counsel appearing on behalf of the respondents Shri R.L. Jangid urged before me that in view of the provisions made under statutory Rule 41 of the Rules of 1986, a notice has already been given to the petitioner, therefore, he is not entitled to be given a reasonable opportunity of hearing by extending the principle of natural justice even if such order lead to civil consequences. It is also urged by the learned Counsel for the respondents that the expression 'may serve a notice upon the assessee in Form No, 13' means that principles of natural justice have been excluded by necessary implications even if it may have civil consequences.
14. I have given my thoughtful consideration to the rival contentions raised at the Bar. I am not able to accept aforesaid argument of the learned Counsel for the respondents about interpretation of Statutory provisions of Rules 41 of the Rules of 1986 hence it is hereby repelled because question of excluding principles of natural justice does not arise in those cases where pecuniary loss to the petitioner is of alarming magnitude amounting to Rs. 99,087/-. Assuming for argument sake that there are no positive words under Rule 41 of the Rules of 1986 requiring the assessee to be given a reasonable opportunity of hearing yet common law would supply the omission of Rule making Authority and shall be presumed that the order of reassessment of royalty leading serious civil consequences against the petitioner is impermissible without affording a reasonable opportunity of hearing to him.
15. As a result of the aforementioned discussion, the instant writ petition is allowed and the reassessment demand notice, Anx. 8 to the writ petition, to the extent of Rs. 99,087/- is hereby quashed and the respondent No. 3 is directed to reassess the royalty after giving a reasonable opportunity of hearing to the petitioner by speaking...
16. Before parting with the order, it is hereby made clear that the respondent No. 3 will give a fresh specific show cause notice to the petitioner giving details from which period to which period he intends to reassess the royalty against the petitioner. It is further specifically made clear that plea of Sub-rule (2) of Rule 41 of the Rules of 1986 shall not be available to the petitioner in the reassessment proceedings before respondent No. 3 or any other appropriate authority.