GOKUL PRASAD Vs. STATE

JUDGEMENT

(1.) Petitioner by this writ petition has prayed that by an appropriate writ, order or direction the Annexures 2 to 5 may be quashed d di directing the respondents not to realise the huge sum of money mentioned in the aforesaid orders.

(2.) Petitioner was granted a mining lease by the Mining Engineer, Sirohi through a registered lease deed for a period of five years from 17-6-1976 for extraction of lime stones suitable for lime burning and masonary stones. The said lease remained in, force till 26/07/1982. The rate of' royalty fixed for lime stones suitable for lime burning was Rs.3.00 and for masonary stones 0.50 paise per ton. Petitioner usually submitted the returns of the lime stones extracted and till 16/06/1979 the royalty was charged as per the abovementioned rates, but from 24-8-79 to 22-9-79 Rs. 1.50 paisa was charged for masonary stones and from 23-9-79 the same was charged as per Re. 1 /- per ton till 16-6-51 and petitioner's assessment was made on the same rates. Thereafter a notice was received by the petitioner for reasessment of royalty for the period from 17-6-77 to 16-6-81 and petitioner was asked to show cause within a period of 15 days from the receipt of the same. The petitioner was allowed time to appear before the Mining Engineer. Sirohi upto 1-5-82, but before the expiry of the said period the non petitioner No. 2 made re-assessment of royalty on 28-7-82 in the absence of the petitioner and without hearing him and issued an additional demand of Rs. 15,359.44 paisa. The petitioner was also supplied the details of re-assessment in a shape of schedule which has been placed on record as Anx. 4. Aggrieved against this the petitioner has approached this court by filing the present writ petition.

(3.) The contention of the learned counsel for the petitioner is, that this notice Anx. 4 is barred by time under Sub-rule (2) of rule 42 of the Rajasthan Minor Mineral Concession Rules, 1977. A reply has been filed by the respondents and they have contested the petition and submitted that as matter of fact petition was wrongly assessed because the petitioner has in fact excavated the lime stone meant for lime burning for which rate was Rs.3.00 per ton and according to the rider agreement he is supposed to pay at this rate. The copies of the rider agreement is placed on record as Anx. R/ 1 and R/2. It is submitted that the petitioner was charged at the rate of 0.50 paisa for the masonry stone till the date of agreement at the rate of Rs. 3.00- per ton as per the written consent of the petitioner therefore the respondents have pointed out that there is no question of any limitation coming in the way and it was also pointed out that this provision is not applicable in the case of the petitioner because sub-rule (2) of Rule 42 only applies regarding the despatches of mineral from the lease area or consumption of mineral within the leased area but there is no period of limitation prescribed in case the assessee has been assessed on the basis of erroneous tariff. The bar of three years' period is only applicable to despatches and consumption of the mineral meaning thereby that no dispute regarding quantity of the mineral excavated can be disputed but if the assessee has been wrongly assessed on the basis of erroneous rate then the provisions mentioned in sub-rule (2) of Rule 42 will not be applicable. I think the submission of the learned counsel for the respondents appears to be justified. Rule 42 reads as under: