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2014 DIGILAW 1454 (ALL)

Balram Kushwaha v. State Of U. P.

2014-05-05

PANKAJ NAQVI

body2014
JUDGMENT Pankaj Naqvi,J.: - Heard Sri Siddhartha Srivastava, learned counsel for petitioner and learned Standing Counsel for the State. By means of present petition, petitioner challenges the order dated 14.09.2011 whereby his mining lease was cancelled and order dated 13.07.2013 dismissing his appeal. Petitioner was granted a mining lease for 10 years on 28.08.2009 upto 27.08.2019, and the same was registered on 10.09.2009, in respect of Gata No. 2/4 (area 4 acres) at village Jujhar, Pargana Mahoba, Tahsil & District Mahoba. Petitioner commenced mining operations. On 31.10.2011, Basic Shiksha Adhikari, Mahoba lodged a complaint before Mining Officer, Mahoba that on account of heavy blasting undertaken by petitioner, damage has been caused to the nearby school building. Pursuant to said complaint, Mining Officer inspected the site on 02.11.2011, whereupon villagers informed that blasting is carried out indiscriminately beyond scheduled period as a result of which atmosphere of fear and uneasy calm prevails. Pursuant thereto a show cause notice dated 17.11.2011 (Annexure-6) was issued calling upon the petitioner to submit his reply within a week. Petitioner responded to the show-cause notice on 26.11.2011 by contending that the terms of the lease have not been violated, no building has been damaged. Petitioner also requested that he be supplied copies of inspection reports dated 02.11.2011, 06.11.2011 and 09.11.2011. However, respondent no.4 issued another notice/ order dated 01.12.2011 (Annexure-8) alleging that on inspection / survey conducted on 29.11.2011, no Board or sign was found at the site and heavy blasting was detected. It was also alleged that villagers also reported that on account of indiscriminate heavy blasting by petitioner beyond scheduled hours gaping holes were detected, which upon measurement was found to the extent of 7874 cubic meters, thus alleging gross violation of provisions of U.P. (Minor) Minerals Concession Rules, 1963 and conditions no. 9 to 13 of the lease deed. Order dated 01.12.2011 also called upon petitioner to immediately stop mining operations and to submit his reply within a week. Petitioner submitted his reply on 15.12.2011 denying the allegations in the notice/ order dated 01.12.2011. It was alleged that petitioner represented before authorities on 16.01.2012 and 03.02.2012 requesting them to permit him to restart mining operations, but it was only on 14.09.2012 that the Collector, Mahoba proceeded to cancel the lease on 14.09.2012. Petitioner challenged the order dated 14.09.2012 in appeal, which came to be dismissed on 13.05.2013. 2. It was alleged that petitioner represented before authorities on 16.01.2012 and 03.02.2012 requesting them to permit him to restart mining operations, but it was only on 14.09.2012 that the Collector, Mahoba proceeded to cancel the lease on 14.09.2012. Petitioner challenged the order dated 14.09.2012 in appeal, which came to be dismissed on 13.05.2013. 2. It was streneously urged on behalf of petitioner that after issuance of show-cause notice dated 17.11.2011, which was responded on 26.11.2011, a fresh notice/ order dated 01.12.2011 was issued, which was only founded upon an alleged exparte inspection carried out on 29.11.2011. It was thus contended that inspection report dated 29.11.2011, a copy of which was not served on petitioner could not have become the basis of cancellation of the lease. It was also contended that the report dated 03.11.2011 of Mining Officer, Mahoba addressed to Basic Shiksha Adhikari, Mahoba (Annexure-SCA1) itself indicates that during inspection on 02.11.2011, it was found that the school building in question is situated at a considerable distance from the mining site and considering the nature of cracks on the building, same could not be attributable to blasting operations carried out by petitioner. 3. Refuting the aforesaid submission, learned Standing Counsel submits that on available materials, petitioner was found guilty of committing gross irregularities in the course of mining operations and that after due notice and opportunity, his lease has been cancelled to which no illegality could be attributed. 4. The Court finds that first notice dated 17.11.2011 was based upon inspection report dated 02.11.2011, whereas the second notice/ order dated 01.12.2011 is based on inspection dated 29.11.2011. The notice / order dated 01.12.2011 does not reflect that the copy of inspection report dated 29.11.2011 was ever served upon petitioner so that petitioner may have had the opportunity to rebut the allegations. The notice/ order dated 01.12.2011 relies upon report of surveyor dated 29.11.2011, wherein certain deficiencies have been reported such as absence of sign-boards and also evidence of heavy blasting, coupled with the complaints of villagers that heavy blasting is being resorted beyond prescribed hours so much so that during inspection 7874 cubic meters of illegal blasting was reported. The petitioner in his reply dated 15.12.2011 denied the said allegations. 5. The position, which now emerges, is that the order of cancellation is founded upon two inspection reports, i.e. dated 02.11.2011 and 09.11.2011. The petitioner in his reply dated 15.12.2011 denied the said allegations. 5. The position, which now emerges, is that the order of cancellation is founded upon two inspection reports, i.e. dated 02.11.2011 and 09.11.2011. Despite specific plea raised in reply dated 26.11.2011 that he be supplied with a copy of the inspection reports dated 02.11.2011 and 09.11.2011, same neither appears to have been furnished nor is there any discussion in the impugned orders. However, it appears that report dated 09.11.2011 was annexed as Annexure-CA2 along with counter affidavit for the first time. The petitioner alleges in rejoinder affidavit that Annexure-RA1 is the alleged inspection report of the District Mining Officer, Mahoba dated 03.11.2011 addressed to the Basic Shiksha Adhikari, Mahoba which appears to have been supplied to the petitioner on a request made by petitioner under R.T.I. Act on 17.08.2013, i.e. after filing of writ petition. Although reports dated 02.11.2011 and 09.11.2011 have surfaced for the first time after filing of the writ petition, it would not be appropriate for this Court to examine the veracity of reports vis-a-vis reply / objection of petitioner. It is a cardinal principle of natural justice that any material, which was sought to be relied upon should be confronted to the person against whom the same was intended to be used. These reports could have been supplied to petitioner either at a pre-decisional or a post-decisional stage of cancellation, considering the facts and circumstances of the case so as to enable him to meet the same. Once it is established that said reports were not supplied, order of cancellation dated 14.09.2012 and that in appeal are rendered vulnerable in law. 6. The writ petition succeeds and is allowed. The orders dated 14.09.2012 and 13.05.2013 (Annexures-3 and 2 respectively) are quashed. However, it would be open for the respondents to pass fresh orders in accordance with law and in the light of observations made above. It would also be open for the District Magistrate/ Collector, Mahoba that in the event, petitioner is found indulging in illegal mining, he shall forthwith register a First Information Report against him and shall proceed in accordance with law. 7. No order as to costs.