JUDGMENT 1. - It is an admitted fact that the petitioner was granted a mining lease for mineral Silica Sand (major mineral) situated in Village Ancholi measuring 40.8 Hecters by the State of Rajasthan vide order dated 9.9.1981 for a period of 20 years on yearly dead rent of Rs. 510/- subject to revision of the dead rent after 5 years as per rules. The lease deed was also executed and registered w.e.f. 5.3.1983. It is stated by the petitioner that immediately after grant of the lease, he started excavating the minerals and had opened certain pits upto 3rd August 1990 and again two pits were opened. He invested huge amount on the pits but no material was found into the opening of the said pits. However, some material was found in the pits No. 9 and 10. It is alleged in the petition by the petitioner that he has regularly been submitting monthly statistics and also got the royalty assessed vide Annex.1, 2 and 3 for the assessment years ranging for the years 1987-1988, 1988-89, 1989-90. The Surveyor of the Mining Department had also inspected the site in August 1990 and has reported that 8 pits were opened which is clear from Annex.4. However, the petitioner, was surprised to receive a letter Annex.6 dated 10th May 1991 purporting to have been passed by the authorities cancelling the lease under Rule 28(1) of the Rajasthan (sic) Mineral Concession Rules, 1960 (hereinafter called the Rules'). 2. Being aggrieved against the order Annex.6, a revision petition was filed before the Central Government which revision petition was dismissed on 21st Sept., 1993 vide Annex. 13. The petitioner has filed the present writ petition challenging the impugned order Annex.6 and the revisional order Annex.13 immediately on the ground that before passing the impugned orders, no notice was issued to the petitioner and he was never asked to explain about the non-operation of the mine. Even though the petitioner submits that in accordance with Annex.4, a report was submitted by the Surveyor of the Mining Department, it is very clear that the mine was in operation. Even though the petitioner submits that in accordance with Annex.4, a report was submitted by the Surveyor of the Mining Department, it is very clear that the mine was in operation. It is further submitted that the petitioner had been operating the mine as per the assessment reports Annex.1,2 and 3, for the relevant years but because of the reason that no material was found and for the reason that no minerals have been found, no production came to be produced, it cannot be said that the petitioner had not operated upon the mine as alleged in Annex.6. 3. It is true that Rule 28(1) of the said rules do authorise the authorities to cancel the lease in case it is found by the authorities that the lease holder was unable to operate the mine but the principle of natural justice require that before taking the final action against any of the lease holders on this ground, it is but necessary and mandatory for the authorities to have at least inform the lease holders about the action and the reasons; which are apprehended against the lease-holder and a proper opportunity should be given to the lease holder to rebut the allegation, if any made in such notice. Admittedly in the present case no notice whatsoever was issued before passing the impugned order Annex.6. and thus, the impugned order Annex.6 is manifestly illegal because of no opportunity having been given to the petitioner. Even though the petitioner submits that as per the report by the Inspector/Surveyor it was found that the mine was operating at least at that time or during the time when the notice is said to have been issued that part is not denied. 4. Counsel for the respondents submits that even though the mine was operating in the year 1991, when the notice was issued but because of the reason that in the earlier years i.e. 1987-88 etc., if the mine was not working, subsequent working of the mine shall not remove the defect. The contention of the respondents cannot be accepted. 4. Counsel for the respondents submits that even though the mine was operating in the year 1991, when the notice was issued but because of the reason that in the earlier years i.e. 1987-88 etc., if the mine was not working, subsequent working of the mine shall not remove the defect. The contention of the respondents cannot be accepted. Once of respondents allowed the lease holders to continue with the lease and its operation for years together and if the mine had started working with producing, the respondents cannot take shelter of any alleged omission of the lease holder of the previous year of its non-operation for taking action at the time when the mine is in operation. The State is to be vigilant in such circumstances, if in any year as per the lease deed or instructions as applicable and if so required that the lease is to be cancelled in case the lease holder does not put the mine in operation, the action required is to be taken immediately after due notice to the lease holder so that the lease holder should know his liability but if the State allows the lease holder to prolong for years together and ultimately, the mine becomes operational with huge expenses made by the lease holder, the State has no authority to say that for the reason that it was not in operation in the past and therefore, the lease is to be cancelled without any notice. 5. Counsel for the petitioner relies on a Judgment in the case of M/s. Choksey Chemicals Pvt. Ltd. v. The Secretary, to Government, Department of Mines, reported in 1991(1) Andhra Pradesh W.R. 369 , wherein the order of the Mining Authority was set-aside on the ground that no notice and opportunity was given to the mining lease-holder. While interpreting the rule 28 of the rules, the Andhra Court had observed as under: "9. Thus, no material is placed before this Court by respondents to establish that the said G.O. Ms. No. 450 dated 6.9.1989 lapsing the said lease deed dated 30.9.1969 under Rule 28(1) was communicated to the petitioner as required by the said sub-rule. While interpreting the rule 28 of the rules, the Andhra Court had observed as under: "9. Thus, no material is placed before this Court by respondents to establish that the said G.O. Ms. No. 450 dated 6.9.1989 lapsing the said lease deed dated 30.9.1969 under Rule 28(1) was communicated to the petitioner as required by the said sub-rule. It is stated on behalf of the petitioner in the affidavit in support of the writ petition that the petitioner came to know about the said lapsing order only after receiving the impugned order dated 11.1.1990 and that no notice was given to the petitioner before the said lapsing order was made. Clauses 2, 3 and 4 of Part IX of the said lease deed are also relied upon in support of the said contention and it is stated that if the lease makes any default the Government should give notice to the lessee and that the Government cannot pass orders lapsing the lease without giving notice and without giving opportunity to the petitioner. The petitioner also contends that if lapsing orders were issued under G.O. Ms. No.450 dated 6.9.1989 the lapsing of the said mining lease cannot be brought into effect from 9.2.1988 under Rule 28(1) of the Rules. Power under the said Rules cannot be exercised with retrospective effect. These averments in the affidavit on behalf of the petitioner are not met in the counter affidavit filed on behalf of respondents. The learned counsel for the petitioner also raises the further contention that Rule 28 relating to lapsing of leases was introduced only on 10.2.1987 and that it cannot be given retrospective effect to leases made as long back as 1969. He also submits that in as much as the lapsing order was not communicated to the petitioner, the grounds on which such order was passed are not known. I am of the view that even assuming that new Rule 28(1) is applicable to the petitioner's mining lease because the order declaring the mining lease as lapsed has civil consequences is incumbent on the Government to follow the principles of natural justice and fair play by giving notice ans opportunity to the petitioner before any such order is passed. I am of the view that even assuming that new Rule 28(1) is applicable to the petitioner's mining lease because the order declaring the mining lease as lapsed has civil consequences is incumbent on the Government to follow the principles of natural justice and fair play by giving notice ans opportunity to the petitioner before any such order is passed. On a reading of new Rule 28(1), 1 am satisfied that it does not exclude the compliance with the principles of natural justice and fair play before an order declaring the mining lease as lapsed is made by the Government. It is not the case of the respondents that the said principles were observed before the order lapsing the said lease in favour of the petitioner was made in the said G.O. Ms. No. 450 dated 6.9.1989. In this view of the matter, I hold that the respondents cannot rely on the said order lapsing the said lease with effect from 9.2.1988 under new Rule 28(1) as a ground for rejecting the renewal application of the petitioner of 27.9.1988." 6. Counsel for the petitioner also relies on a Judgment of the Supreme Court (2) reported in AIR 1988 SC 1302, wherein the Hon'ble Supreme Court had held that the premature termination of the lease cannot be allowed until and unless opportunity is afforded to the lease holder. The Hon'ble Supreme Court observed as under: "The two Governments have to consider whether premature termination of a particular mining lease shall advance the object or not and must, therefore, take into account all considerations relevant to the issue with reference to the lease in question. In this view the section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the Section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. A final decision to prematurely terminate a lease can, therefore, be taken only after notice to the lease." 7. Since there is no suggestion in the Section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. A final decision to prematurely terminate a lease can, therefore, be taken only after notice to the lease." 7. In the present case though the impugned orders are not sustainable on the grounds mentioned above, the cancellation of the lease cannot also be sustained on the grounds that no material has been placed by the respondents on the record to show that during the relevant years the mine was not operational. It is a different matter altogether it the mine is made operational but no produce is found and in such circumstances, it cannot be said that because of the reasons that no produce has been found, the lease-holder has not started the mine into operation. Annex.1, 2, and 3 have not been denied by the respondents. In view of the sufficient record produced by the petitioner in this Court, it cannot be said that the mine was not operational during that period. It has been stated at the Bar that because of the stay order granted by this Court, the lease holder is continuing and the mine is still working. 8. The writ petition is allowed. The impugned orders Annex. 6 and 13 are set-aside. No order as to costs.Petition allowed. *******