Hon'ble Dr. KOTHARI, J.—This second appeal has been filed by the appellant -plaintiff Shree Cement Limited against the concurrent dismissal of its suit for injunction against the recovery of dues raised by the defendant - Mining Department to the extent of Rs.4,20,000/- on account of illegal mining outside the area leased to the plaintiff – company on the basis of survey made by the mining authorities on 24.6.1995.

2. The learned Trial Court of Civil Judge (Junior Division), Bar dismissed the suit of the plaintiff appellant being Civil Original Suit No.43/1995 - Shree Cement Ltd. vs. State of Rajasthan and ors. vide judmgent and decree dtd.19.4.2005 and the first appeal was dismissed by the learned Additional District Judge (Fast Track) No.1, Headquarter Jaitaran, Dist. Pali vide judgment dtd.29.4.2006 in Civil First Appeal No.93/2005 – Shree Cement Ltd. vs. State of Rajasthan and ors. Being aggrieved by the same, the appellant – company has preferred this second appeal on stated substantial questions of law before this Court.

3. The learned counsel for the appellant – Company, Mr. Arvind Shrimali urged that the survey report (Mauka Panchnama) was not prepared in presence of the any official of the appellant – Company and according to the plaintiff – company, the illegal mining was not done outside the area leased to them and consequently the demand of royalty raised without giving an opportunity of hearing to the plaintiff company was illegal and therefore, the injunction suit filed by the plaintiff – company deserved to be decreed in its favour. He submitted that in absence of any opportunity of hearing and presence of official of plaintiff – company at the site at the time of survey on 24.6.1995, the demand in question could not be recovered from the plaintiff – company. He relied upon the decision of this Court in the case of Smt. Saroj Sharma vs. State of Rajasthan and ors. reported in 1993(2) WLC (Raj.) 745 in which the learned Single Judge of this Court held that order imposing penalty under Rule 48 of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as MMCR, 1986) could not be passed without notice and without giving an opportunity of hearing to the party concerned and the said order was not sustianable. Another decision cited at Bar is in the case of Mubarak Hussain alias Dalda vs. Mining Engineer and anr. - SBCSA No.62/2008 decided on 24.10.2008 wherein this Court quashed such demand notice straightway issued by the defendant – Mining Engineer without giving any opportunity of hearing to the plaintiff.

4. On the other hand, Mr. R.K.Soni, learned counsel appearing for the defendants – respondents, the Mining Department submitted that the survey in question was conducted by the competent authorities in presence of independent witnesses on 24.6.1995 and survey report is signed by one Devi Singh and Rameshwar Prasad besides concerned Assistant Mining Engineer. He also submitted that after the said survey on 24.6.1995, a show cause notice was issued to the plaintiff – company for the proposed demand or cost of the mineral illegally mined at 10 times of royalty on 4.7.1995, Ex.2, to which the plaintiff – company duly filed its reply dtd.15.7.1995 signed by its Joint Vice President (Mining) Mr. V.P. Sinha, Ex.1. Thereafter concerned Assistant Mining Engineer passed the appropriate order over-ruling and rejecting the said objections of the plaintiff – company vide order dtd.28.8.1995 and held that for illegal mining on specified area of 200 x 20 x 0.5 meters, taking 50% recovery of mined mineral at 1000 cubic meter, 10 times royalty amount would come to Rs.4,20,000/- for which proper and consequential demand notice was issued under Rule 29 read with Section 229 of the Rajasthan Land Revenue Act on 12.9.1995. He, therefore, submitted that not only opportunity of hearing was given to the plaintiff – company, but the plaintiff – company failed to establish any case before the adjudicating authority, name

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