Ram Chander vs Union Of India And Anr.
1988 Latest Caselaw 343 Del

JUDGMENT

P.K. Bahri, J.

(1) Petitioner has sought a writ of certiorari for quashing the order dated September 12, 1985, passed by Respondent No. 1 and order dated November 16. 1984, passed by Respondent No. 2 and also show cause notice dated March 21, 1984, issued by respondent No. 2 and writ of mandamus requiring the respondents to allow the petitioner to continue to operate the mining area leased out to him under the lease deed dated August 5, 1983 and for directions restraining the respondents from interfering in the possession and working of the petitioner in the said area. A direction is also sough restraining the respondents from leasing this area to anyone else.

(2) The facts giving rise to this writ petition, in brief, are that the petitioner had discovered the silica sand in the village of Gothra Mohabata bad. District Faridabad(Haryana) in the year 1981. Petitioner is stated to be involved in the trade and occupation of mining and is holding a Certificate of approval under Rule 4 of Mineral Concession Rules, 1960 from Respondent No. 2. The petitioner applied for mining lease of silica sand under the discoverer's preferential rights to obtain such a lease on December 24, 1981, but the State of Haryana respondent No. 2 did not choose to sanction the lease to the petitioner. The petitioner approached the Central Government against the order of the State Government

(3) It is the case of the petitioner that the area leased o to the petitioner win the geological belt which extends to the area lying in Delhi and there has been no demarcation of boundaries between areas of Delhi and respondent No. 2 at the spot. It was averred that the mining operations in the adjacent area of Delhi were being carried out in haphazard, unsystematic and unscientific way by some local contractors which has resulted in dangerous mining bringing about some fatal accidents also. It was pleaded that in Delhi certain steps were taken to get the mining operations done through State Corporations but due to unusual population explosion illegal mining in that area continued to operate. It was pleaded that the area allotted to the petitioner was virgin land and the petitioner started mining operations but it is alleged that within 12 days or so i.e. on September 3, 1983, the inspection of the petitioner's mines was carried out and it was pointed out that certain dangerous mines have been brought into existence by the petitioner. According to the petitioner, his area was demarcated only on August 21, 1983. The petitioner also gave out the facts that there arose certain quarrels between petitioner's workers and the owners of mines of adjoining Pali Silica sand mines and the S.H.O. Ballabgarh Along with police party had arrived at the spot and they were also injured by the attacking workers of the other side and a dispute was raised regarding demarcation of the areas and a commission was appointed on August 21, 1983, for demarcating the area. According to the petitioner, the demarcation was carried out by the new commission only on September 11, 1983. It was averred in the petition that the inspection done on September 3, 1983, could not be pertaining to the mines of the petitioner because there was no proper demarcation of area at that time and there is possibility that dangerous mines, being worked by some unauthorised persons, were inspected and a wrong report was given that the petitioner's mines were dangerous. The petitioner alleged that the State Government of Haryana had from the very beginning hostile and malafide attitude towards the petitioner inasmuch as it was not willing to grant the lease to the petitioner who in law was entitled to have it and was forced to grant the lease due to intervention of the Central Government and thus, the false inspection report had been obtained through subordinate officers in order to have some ground to cancel the lease of the petitioner. The petitioner also gave detailed facts with regard to his efforts to get the land demarcated properly but without any success. The petitioner has made reference to provisions of Mines Act, 1952, to show that no proper inspection has been made. On the basis of inspection carried on September 3, 1983, a letter was issued to the petitioner dated September 30, 1983, requiring the petitioner not to employ any workers in operating those dangerous mines. According to the petitioner, as his efforts to get the area demarcated properly did not succeed and some unauthorised persons were illegally carrying on mining work in the adjacent areas and quarrels were taking place, the petitioner decided to stop his mines and he dosed his mines on November 5, 1983 and sent the intimation to the Director of Mines Safety. It was also alleged that Police Check Post and the Check Post installed by the petitioner were removed from the spot and illegal mining of the area has been allowed to be indulged in with connivance of same high ups. The petitioner has made reference to an order made on March 23, 1984, by the said Director under Section 22(3) of the Mines Act prohibiting employment of any labour in the said dangerous mines. It is alleged that such orders had been issued also in respect of owners of other mines in Faridabad District. It is alleged that this order was made on an alleged inspection done on February 21, 1984. It is the case of the petitioner that the operation of the mines in the area comprising 100 sq. kilo metres could not have been carried out in one day and it appears that the orders under Section 22(3) of the Mines Act were made by the Director in respect of all the mines as there were some serious conditions developed regarding' operation of mines by unauthorised persons. The petitioner has mentioned that the authorities had assured that the genuine mines owners would be allowed to operate the mines after authorised survey had been made in respect of their mines. Then the petitioner made reference to the orders of the Director made in connection with the other mines owners allowing them to operate their mines subject to certain conditions.

(4) A show cause notice dated March 21,1984, was issued by respondent No. 2 requiring the petitioner to rectify the defects appearing in his mines within sixty days and it was mentioned that if such defects are not removed, his lease would stand cancelled. The petitioner has mentioned that the petitioner wrote letters to the Director of Mines Safety for permission to employ workers to remove the defects but no response was received and the petitioner also made representation to respondent No. 2 to direct the Director of Mines Safety to permit the employment of workers by the petitioner for removing the defects but the petitioner did not receive any reply and respondent No. 2 proceeded to pass the impugned order cancelling the lease on the ground that the petitioner had failed to rectify the defects pointed out by the Director of Mines Safety within the stipulated period and also on a additional ground that in spite of Director of Mines Safety prohibiting the petitioner to operate the mines, the petitioner had illegally continued to operate the mines. The petitioner also mentioned that before the order of cancellation was made, the petitioner had applied to the Director of Mines Satiety and submitted the plans on November 9, 1984, for operating the mines in the other area of the lease. The petitioner has mentioned that the alleged inspection report dated February 23, 1984 which is also made the basis of cancelling the lease was never brought to his notice in the contents of the show cause notice and report was also not correct and in case the petitioner bad been illegally carrying on mining operations for nearly four months as alleged, it is not possible that the officials of respondent No. 2 who were entrusted with the job of inspecting the mines continuously would not have apprehended any such illegal mining by the petitioner for all these four months. It is also alleged that in .the show cause notice an inspection report of October 13, 1983, is mentioned while in fact, no such inspection was done. The petitioner has pointed out that the revisional authority also did not care to examine the illegality committed by respondent No. 2 in cancelling the lease and had dismissed the revision petition. The writ petition has been contested by respondent No. 2. An affidavit of Shri Kuldipak Ahuja Mining Engineer, Department of Industries, Haryana, has been filed. The impugned orders have been challenged by the learned counsel for the petitioner firstly on the ground that the lease had been cancelled on a ground which was not subject-matter of show cause notice and thus, no opportunity of hearing had been provided to the petitioner, to show cause that the additional ground taken and mentioned in the order of cancellation of lease, infact, did not exist It has been urged that rules of Natural Justice have been violated' by respondent No. 2 in not providing any opportunity to the petitioner in showing cause to the additional ground mentioned in the order of cancellation of lease, secondly, that no fair opportunity had been given to the petitioner to remedy the defects pointed out by the Director of Mines Safety inasmuch as his repeated requests to permit him to employ the workers for removing the defects remained unattended and the period of sixty days given in the show cause notice for removing the defects was illusory as the petitioner was never permitted to employ the workers for removing the defects and the revisional authority was not legally right in opining that the order made under Section 22(3) of the Mines Act, 1952, had become final and thirdly, that the orders of cancellation of lease had been made on malafide ground.

(5) Now coming to the first point, Annexure P 12 is the copy of the show cause notice served on the petitioner. It has been mentioned in this show cause notice that officers of the Directorate Mines and Safety, Ghaziabad, had inspected the mines of the petitioner on September 3, 1983 and October 13, 1983 and had pointed out the following defects in the mines :

(I) The height of the benches in soft start should not exceed 1.5 metres and the width of the benches should not be less than the height but the working in the area were dangerous with deep pits overhangs etc.

(II) Formation of the benches should be done from top downwards and were not formed in accordance with the provisions of regulations 106 of the Metal ferrous Mines Regulations, 1961.

(III) Persons employed close to the edges of the pits were not secured with safety belts and safety ropes.

(IV) Statutorily qualified persons were not employed.

(6) It was mentioned in the show cause notice that the petitioner had violated the covenants contained in Clause 7 of Part Vii of the lease deed dated August 5, 1983, and that the petitioner was required to remedy the aforesaid breaches within sixty days of the receipt of the notice and it was mentioned that if the breaches were not rectified, the lease deed would be cancelled and the security amount shall stand forfeited in terms of Rule 27 (5) of the Mcr 1960 (Mineral Concession Rules). A copy of the reply given to this show cause notice is annexure P15 in which the petitioner mentioned that he bad closed the mines on November 5, 1983, and that he had received the show cause notice on May Ii, 1984 and he had written the letters to Director of Mines Safety for seeking permission for employment of labour for rectifying the defects and in spite of his sending reminders dated May 20, 1984, June 16, 1984 and July 3, 1984, no such permission had been given and even Secretary, Haryana Industries Department, did not care to reply to his application requiring him to direct the Director Mines Safety to permit the petitioner to employ workers for removing the defects. It was clearly pointed out in this reply that in view of the order passed by the Director of Mines Safety under Section 22(3) of the Mines Act prohibiting the petitioner from employing any. workers at the mines site, the petitioner was not in a position to rectify the defects till the said order had been modified by the Director of Mines Safety. It is significant to mention that in this reply the petitioner did not challenge the correctness or otherwise of the inspection reports dated September 3, 1983 and October 13, 1983. The petitioner also did not raise any dispute that there had occurred any confusion on account of no proper demarcation of areas or the petitioner had not carried on the mining operations for sufficient period so that the defects pointed out in the said inspection reports could have occurred As a matter of fact, the existence of the defects enumerated above was not disputed in this reply to the show cause notice. No malafide had been imputed to the Director of Mines Safety in any manner. The cancellation order, a copy of which is annexure Pis, shows that the lease has been cancelled only on the ground mentioned in the show cause notice but also on an additional ground. It was mentioned that on February 21, 1984, the Deputy Director of Mines Safety had again inspected the mines and found that the petitioner in violation of the order made under Section 22(3) of the Mines Act was still working the mines by employing the persons. It is also now not disputed before me that there was no reference made in show cause notice with regard to any inspection report dated February 21,1984. So, on the face of it, the petitioner was not afforded any opportunity to show cause to the inspection note dated February 21, 1984. A copy of the order of the revisional authority annexure P22 shows that the revisional authority had not dealt with this point at all although in the rejoinder filed before the revisional authority by the petitioner it was clearly pleaded by the petitioner that he had been given opportunity to show cause by respondent No. 2 before cancelling the lease in respect of the inspection report dated February 21, 1984. It is, hence, clear that the cancellation order is based on a ground in respect of which the petitioner bad not been given any opportunity of showing cause. Thus, the order of cancellation of lease violates the principles of Natural Justice. It cannot be imagined as to incase this inspection report dated February 21, 1984,had not been in existence, still whether respondent No. 2 would have resorted cancelling the lease of the petitioner on the basis of the earlier inspection reports dated September 3, 1983 and October 13, 1983. Counsel for respondent No. 2 has argued that the matter may be remanded to the revisional authority to enable the revisional authority to consider this point. I am afraid that no useful purpose would be served by remanding the matter to the revisional authority when the cancellation order itself appears to be vitiated on account of taking into consideration a ground for which no show cause notice had been served on the petitioner.

(7) The revisional authority was also not right in its decision that as long as the order under Section 22(3) remained in operation the petitioner had no option but to suffer the order of cancellation of lease. If that is so, the period of 60 days provided in the show cause notice for enabling the petitioner to remedy the defects was illusory. However, as I read Section 22(3) of the Mines Act, 1952, I .find that the said order does not have the effect of disabling the owner of the mine from employing the workers for removing the defects appearing in the mines. Section 22(3) of the Mines act 1952, reads as follows : "IF the Chief Inspector, or an Inspector authorised in this behalf by general or special order in writing by the Chief Inspector, is of opinion that there is urgent and immediate danger to the life or safety of any person employed in any mine or part thereof, he may, by order in writing containing a statement of the grounds of bids opinion, prohibit, until the danger is removed, the employment in or about the mine or any part thereof of any person whose employment is not in his opinion reasonably necessary for the purpose of removing the danger."

(8) A bare perusal of the section shows that the purpose of passing this order is to prohibit the employment of workers in the dangerous mines until the danger is removed. It clearly contemplates that employment of only such persons would be prohibited which is not in the opinion of Chief Inspector reasonably necessary for the purpose of removing the danger. So, it is obvious that even though the order made under Section 22(3) is not challenged by filing an appeal, still the owner of the mines is not debarred from employing workers for removing the defects in the mines as has been noticed by the Chief Inspector or Inspector of the mines. In the present case, the Director of Mines Safety has passed an omnibus order prohibiting the petitioner from employing any worker in the said mines. The petitioner on receiving the show cause notice admittedly had repeatedly made written applications to the Director concerned to permit the petitioner to employ workers only for the purpose of removing the defects in the mines as pointed out in the aforesaid two inspection notes but the petitioner did not received any response. The petitioner even approached the Secretary of Industries by writing a letter requesting for issuance of directions to the Director of Mines Safety for permitting the petitioner to employ workers who could rectify the defects pointed out in the show cause notice, but the petitioner did not receive any response. In the counter filed by respondent No. 2, these points have not at all been met. It is, hence, obvious that the revisional authority was wrong in its decision that the petitioner having not challenged the order made 'under Section 22(3) by filing an appeal was debarred from urging that he had no opportunity to rectify the defects pointed out in the show cause notice. In spite of the fact that the petitioner has not challenged the order made under Section 22(3) by filing an appeal, still the provisions of Section 22(3) clearly show that the petitioner was entitled to remove the defects and for that purpose he was entitled to employ the workers and that is why the petitioner sought permission from the authority concerned for modifying its earlier orders to enable the petitioner to employ the workers for rectifying the defects. The Director of Mines Safety had in similar situation modified its orders in respect of other owners of mines similarly situated on whom also the orders made under Section 22(3) were served. For that purpose, pages 70, 76, 81, 82, 87 & 90 of the writ may be perused which are the copies of the similar orders made under Section 22(3) and later on modified by the Director of Mines Safety himself when those orders were withdrawn. It is not understood why the Director of Mines Safety did not care to respond to the repeated requests of the petitioner for permission to employ workers for removing the defects in the mines. So, on this score also the order of cancellation of the lease as well as the revisional order have to be quashed.

(9) However, it is not possible to give any finding on the allegation of the petitioner that the impugned orders have been passed by the authorities actuated by any malafide intentions. It is also not out of place to mention that in the reply to the show cause notice the petitioner had not disputed the correctness of the inspection reports dated September 3, 1983 and October 13, 1983. So, it is not possible to quash the show cause notice.

(10) In view of the above discussion, I allow the writ, make the rule absolute to the extent that the order of cancellation of lease dated November 16, 1984, passed by respondent No. 2 and the revisional order dated September 12, 1985, passed by respondent No. I are hereby quashed. The lease of the petitioner stands restored to its original position. However, I make it clear that the respondents are not debarred from proceedings against the petitioner by serving any fresh show cause notice incorporating any ground or proceeding with the already served show cause notice but the.. petitioner shall be provided a fair opportunity to remove the defects in the mines within reasonable time. The petitioner shall have costs from the respondents which I quantify at Rs. 1500.00 .