M/S J.K. Bricks Through Its Proprietor ... vs State Of Jharkhand
2023 Latest Caselaw 4326 Jhar

Jharkhand High Court

M/S J.K. Bricks Through Its Proprietor ... vs State Of Jharkhand on 30 November, 2023

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Navneet Kumar

                         1                 W.P.(C) No.3080/2020


 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             W.P.(C) No.3080 of 2020
                               ------

1. M/s J.K. Bricks through its proprietor Ramdas Sahu

2. M/s Mina Bricks through its proprietor Naresh Sahu

3. M/s Taj Bricks through its proprietor Md. Mumtaz Khan @ Mumtaz Ansari

4. M/s M.B.C. Bricks through its proprietor Meraj Ansari

5. R.B.C. Bricks through its proprietor Sanjit Prasad

6. M/s R.B.C. Bricks through its proprietor Ranjit Sahu @ Ranjit Kumar Sahu

7. M/s J.R Bricks through its proprietor Johnson Runda

8. M/s KRMB Bricks through its proprietor Ram Kumar

9. M/s Nova Bricks through its proprietor Jawed Akhtar

10. M/s Chand Bricks through its proprietor Mumtaz Ahmad

11. M/s Naam Bricks through its proprietor Deepak Kumar Sahu

12. M/s Sarvshree Sewak Bricks through its proprietor Amar Kumar Keshri

13. M/s Shankar Bricks through its proprietor Shankar Prasad

14. M/s Nath Bricks through its proprietor Baidynath Sahu

15. Shekhar Bricks through its proprietor Deepak Prasad

16. Bharat Bricks through its proprietor Kiran Kumari

17. M.B.A. Bricks through its proprietor Babulal Mahto

18. Azad Bricks works through its Abdul Rub Ansari

19. M/s Nain Bricks through its proprietor Md. Masud Ansari

20. Tiger Bricks through its proprietor Ram Prasad Sahu

21. M/s BSP Bricks through its proprietor Pancham Kumar Singh

22. M/s Tiger Bricks through its proprietor Jyoti Lal Shaw

23. For Ravi Bricks through its proprietor Moti Lal Mahto

24. For Shakti Bricks through its proprietor Ashok Kumar Keshri

25. M/s J.K. Bricks through its proprietor Sanjay Kumar Gupta

26. Parag Enterprises through its proprietor Snigdh Anurag

27. M/s Sars Bricks through its proprietor Mahabir Kumar @ Mahabir Sahu

28. M/s B.K.B. Bricks through its proprietor Mukhram Singh

29. Mahi Bricks through its proprietor Simant Kumar

30. Guru Bricks through its proprietor Arun Kumar Singh @ Arun Singh

31. Neelu Bricks through its proprietor Gurucharan Singh Munjal

32. Steel Bricks Field through its Partnership firm Ashok Kumar Rai @ Ashok Rai

33. Mohit Bricks through its Proprietor Ramesh Kumar @ Ramesh Kumar Munjal

34. For Rama Bricks through its proprietor Laxmi Narayan Keshri

35. Ramesh Bricks (RBM) through its proprietor Ajay Kumar Mehta

36. Ranchi Bricks through its proprietor Sanjay Kumar Sahu

37. S.R.M., Bricks through its proprietor Manoj Kumar Yadav

38. Bharat Bricks through its proprietor Manoj Verma

39. Sun Bricks through its proprietor Md. Nasim Alam

40. A.B.C. Bricks through its proprietor Samim Akhtar

41. Anil Bricks, through its proprietor Ramayan Singh

42. M/s S.M.B. Bricks through its proprietor Shankar Sahu

43. For Naaj Bricks through its proprietor Afroj Ansari

44. J.M.D. Bricks through its proprietor Bishwanath Sahu

45. M/s C.R.D. Bricks through its proprietor Mukesh Kumar

46. Roma Bricks through its proprietor Abdul Kudus @ Abdul Kudus Ansari

47. Amma Bricks through its proprietor Ayaz Khan

48. M/s S.K.B. Bricks through its proprietor Sadanand Sahu

49. B.V.M. Bricks through its proprietor Beni Sahu

50. For Fine Bricks through its proprietor Md. Mumtaz Ansari

51. S.R.B. Bricks through its proprietor Sudhir Kumar Singh

52. Mina Bricks through its proprietor Raj Kumar Gupta

53. M/s A.R. Bricks through its proprietor Aparesh Nandi

54. Pooja Bricks through its proprietor Uday Pratap Singh

55. For R.K. Bricks through its proprietor Raj Kumar @ Raj Kumar Gupta

56. M/s J.K. Bricks through its proprietor Basant Kumar

57. S.R.B. Bricks through its proprietor Md. Eqbal Ansari @ Md.

Eqbal

58. M/s Hind Bricks, through its proprietor, Saiyad Enamul Haque

59. Puja Bricks, through its proprietor Anil Kumar Keshri

60. R.L.M. Bricks, through its proprietor, Manish Kumar

61. Bhawani Bricks, through its proprietor, Dhirendra Kumar

62. B.M. Bricks, through its proprietor, Radho Devi

63. Pawan Brickss through its proprietor Loda Oraon .... .... Petitioners Versus

1. State of Jharkhand

2. Secretary Department of Mines and Geology, Nepal House, P.O. & P.S-Doranda, District-Ranchi

3. District Mining Officer, Ranchi, Court Road, P.O.-G.P.O., P.S.-

Kotwali, District-Ranchi. .... .... Respondents

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR

------

         For the Petitioner            : Mr. Kalyan Roy, Advocate
         For the State                 : Mr. Mohan Dubey, A.C. to A.G.
                                    ------

10/Dated: 30.11.2023

1. This writ petitioner is under Article 226 of the Constitution of

India filed by altogether 63 writ petitioners who had deposited the

separate court fees seeking therein the direction for quashing of the

demand notices, annexed as Annexure-1 series issued by the

respondent, by which, the demand has been made in consequence

of the decision taken of less royalty calculated based upon

inspection conducted as referred in the inspection report.

2. The brief facts of the case, as per the pleading made in the writ

petition, required to be enumerated, read as under:-

3. It is the case of the petitioners that they used to manufacture

bricks and are registered dealers under Jharkhand Minerals

(Prevention of Illegal Mining, Transportation & Storage) Rules, 2017.

4. After inspection of their bricks kilns, the petitioners started

manufacturing bricks and also used to file return regularly and pay

royalty time to time. The petitioners are entitled to manufactured

lakhs bricks per year. All of a sudden, the respondent no.2 issued

demand notices against the petitioners directing them to deposit

certain amount towards less payment of royalty and also penalty.

5. All the writ petitioners were issued demand notices claiming

less payment of royalty and penalty imposed thereon.

6. It is the further case that the petitioners have deposited full

amount of royalty on number of bricks manufactured. It appears from

the demand notices (Annexure-1 series), that such demand was

raised on the basis of a report of inspection said to have done by the

department.

7. It is stated that no notice whatsoever has been issued by the

respondents about the date of inspection and in spite of repeated

demands, the respondent no.2 did not provide inspection report or

the method of calculation of less payment of royalty and amount

imposed.

8. It is the further case that respondent no.2 neither provide any

inspection report nor fixing any date or place of hearing as per Rule

41 of J.M.M.C Rules for the purpose of fixing amount of less royalty.

9. The aforesaid notice transpires that Mines Inspector in his

report dated 18.01.2019 indicated that the Kiln owner did deposit the

royalty and has not obtained license for the financial year 2018-2019

and has started operating kiln. No report dated 18.01.2019 has been

provided to the petitioners at any point of time.

10. In report dated 18.01.2019, it was no-where reflected that the

petitioners have violated Rule 30 & 32 of J.M.M.C. Rules. It is also

no-where stated that the petitioners operating its kiln without

payment of royalty and without any license.

11. It is evident from the factual aspect that the writ petitioners are

carrying on their business of manufacturing of bricks and are

registered dealers under Jharkhand Minerals (Prevention of Illegal

Mining, Transportation & Storage) Rules, 2017.

12. It is the grievance of the writ petitioners that based upon one

inspection, demand notices have been issued on the basis of the fact

that amount which was deposited on behalf of one or the other writ

petitioners, is less so far as royalty is concerned.

13. The basis of filing this writ petition is that copy of the inspection

report which is the basis of issuance of demand notice has never

been served to the writ petitioners and thereby the vital opportunity

to put-forth their defence has not been provided, hence, the writ

petition.

14. Learned counsel appearing for the petitioners has submitted

that since the copy of inspection report has not been supplied before

raising the demand on the basis of less royalty having been made by

one or the other writ petitioners and hence, the non-supply of the

inspection report is contrary to the principle of having adequate and

sufficient opportunity to defend oneself so far as the calculation of

the said demands are concerned.

15. The State has opposed the prayer made in the writ petition by

filing the counter affidavit.

16. However, Mr. Mohan Dubey, learned A.C. to A.G. appearing for

the respondent-State is fair enough to submit that the fact about non-

supply of inspection report is not in dispute.

17. We have heard the learned counsel for the parties and gone

across the pleading made in the writ petition as also the counter

affidavit.

18. The writ petition is for a direction for quashing the demand

notices issued in favour of one or the other writ petitioners, whereby

and whereunder, the demands notice issued based upon the

calculation made by the Committee, is in consequence of less

demand of amount of royalty.

19. We have found from the demand notices, appended as

Annexure-1 series that direction has been given to one or the other

writ petitioners to make payment of amount referred in respective

demand notices within a week, failing which, the certificate

proceeding will be initiated.

20. This Court, therefore, is of the view that the authority has taken

decision by earmarking the quantum of amount to be paid by one or

the other writ petitioners and if the same will not be paid, then the

consequence will be of institution of certificate case under Bihar and

Orissa Public Demands Recovery Act, 1914.

21. Hence, the requirement of providing an opportunity of hearing

to the respective writ petitioners is the requirement of law so as to

follow the cardinal principle of natural justice.

22. The same is the argument, based upon which, the writ petition

has been filed.

23. The law is well settled by the Constitution Bench of the Hon'ble

Apex Court rendered in the case of Msr. Maneka Gandhi Vrs. Union of

India and Anr., reported in (1978) 1 SCC 248, wherein, the proposition

has been laid down that even if there is no statutory provision requiring an

opportunity to be given, in order to follow the cardinal principle of natural

justice, an opportunity of hearing is to be given to the party concerned

who is going to be adversely affected. Such decision has been given by

the Hon'ble Apex Court while dealing with Section 10(3) of the Indian

Passport Act, wherein, the validity of the said provision was challenged on

the ground that there is no provision to provide an opportunity of hearing

before impounding the passport.

24. However, the Hon'ble Apex Court has upheld the constitutional

validity of the said provision but has laid down the proposition that even if

there is no provision or stipulation made in the statutory provision, then

also, it will be the bounded duty of the concerned authority to provide

opportunity of hearing before taking any adverse decision, for ready

reference, the relevant paragraph of the said judgment needs to be

referred, which reads as under:-

"9. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth-y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club:

"We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet re-remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a 'majestic' conception? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance? I believe that it is very much more. If it can be summarised as being fair-play in action -- who could wish that it would ever be out of action? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled; it lacks more exalted inspiration. And then again, in his speech in the House of Lords in Wiseman v. Borneman, the learned Law Lord said in words of inspired felicity:

"... that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only 'fair play in

action'. Nor do we wait for directions from Parliament. The common law has abundant riches : there may we find what Byles, J., called 'the justice of the common law' ".

Thus, the soul of natural justice is "fair-play in action"

and that is why it has received the widest recognition throughout the democratic world. In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that "fair-play in action" demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Denning, MR in these terms in Schmidt v. Secretary of State or Home Affairs -- "where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf". The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations (vide American Journal of International Law, Vol. 67, p. 479). Magarry, J., describes natural justice "as a distillate of due process of law" (vide Fontaine v. Chastarton16). It is the quintessence of the process of justice inspired and guided by "fair-play in action". If we look at the speeches of the various Law Lords in Wiseman case it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", or, was the procedure adopted by the Tribunal "in all the circumstances unfair?" The test adopted by every Law Lord was whether the procedure followed was fair in all the circumstances and "fair-play in action" required that an opportunity should be given to the taxpayer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him". The inquiry must, therefore, always be: does fairness in action demand that an opportunity to be heard should be given to the person affected?"

25. We have proceeded to examine the factual aspect in the light of the

aforesaid proposition of law as also to assess the fact that if the inspection

report has not been given, can it be said to be violation of principle of

natural justice, as the ground has been taken in filing the writ petition.

26. This Court, for the aforesaid purpose, has considered the demand

notices and found therefrom that the very basis of the demand notice is

the inspection report, based upon the finding of the said report, demand

notices have been issued casting liability upon one or the other writ

petitioners with a direction to make payment of the said amount within a

week, failing which, the certificate proceeding will be initiated.

27. The aforesaid stipulation more particularly the consequence in case

of non-deposit of the amount leads to institution of the certificate

proceeding is having more importance, reason being that as per the Bihar

and Orissa Public Demands Recovery Act, 1914, wherein, Section 3

provides by giving definition of 'public demand' and in case, the public

demand is not being paid, a proceeding will be initiated by instituting a

case before the Public Officer, thereafter, a notice is to be issued by the

Certificate Officer in view of the provision of Section 7 of the Act, 1914,

meaning thereby, once the certificate proceeding will be instituted, then

only remedy available to the person concerned to make an objection

regarding the aforesaid demand. But, that is the different aspect of the

matter, since, the said opportunity is to be given only if certificate

proceeding will be initiated by way of filing an objection, as required to be

filed under Section 9 of the Act, 1914.

28. But, the question herein is which is the subject matter of the writ

petition that what is the basis of demand and as to whether before casting

liability upon such an amount on writ petitioners, the opportunity is to be

provided to one or the other writ petitioners.

29. We are of the view that the principle of natural justice is to be

considered in broad-way, since, if the principle of natural justice is to be

observed which means that an adequate and sufficient opportunity is to

be provided to the party concerned and the moment, the adequate and

sufficient opportunity is to be given which incurs a right upon the party

concerned to have a document in entirety, which is the basis of such

demand.

30. If the basis of calculation or decision so taken for the purpose of

issuing demand notice is not being provided and merely a show cause

notice is being issued without appending the inspection report, which

according to our considered view, cannot be construed to be observance

of principle of natural justice in entirety so as to provide an adequate and

sufficient opportunity to the party concerned.

31. The fact about non-supply of the inspection report has specifically

been pleaded by the writ petitioners in paragraph-16 of the writ petition.

32. The State has filed counter affidavit and while responding to

statement made at paragraph-16, 20 & 21 to the writ petition, wherein, the

fact about non-supply of inspection report as mentioned, has not been

categorically disputed. Further, the learned counsel for the respondent-

State is fair enough to submit that the inspection report has not been

supplied.

33. Therefore, this Court is not hesitant to hold that while issuing the

demand notices to one or the other writ petitioners by not supplying the

inspection report, cannot be said to be observance of principle of natural

justice in its strict adherence.

34. Hence, we are of the view that the demand notices are required to

be interfered with.

35. Accordingly, the demand notices, appended as Annexure-1 series,

are hereby quashed and set aside.

36. Since, we are interfering with the demand notices on the ground of

violation of principle of natural justice, hence, the requirement will be to

remit the matter before the District Mining Officer, Ranchi to supply the

inspection report within a period of two weeks' from the date of receipt of

copy of the order which shall be produced by the learned counsel for the

respondent-State within three weeks' from today.

37. One or the other writ petitioners individually will make objection, if

any, within the period of four weeks' from the date of receipt of inspection

report.

38. The District Mining Officer, Ranchi is further directed to decide the

aforesaid objection within the further period of six weeks' from the date of

receipt of such response.

39. It requires to refer herein that if one or the other writ petitioners

failed to respond, the District Mining Officer, Ranchi will be at liberty to

take decision in accordance with law.

40. Accordingly, the instant writ petition is allowed with the aforesaid

direction/observation.

41. The demand, which is the subject matter of the writ petition, will

depend upon the final decision to be taken by the Certificate Officer, as

directed hereinabove.

42. In consequent to disposal of this writ petition, Pending Interlocutory

Application(s), if any, stands disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)

Rohit/-A.F.R.