1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4158/2007 Gulam Sarwar & Anr. Vs. State & Ors. Date of order : 18/12/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri P.S. Sharma for the petitioners. Shri Zakir Hussain, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed by the petitioners assailing the order dated 9.11.2004 passed by the Mining Engineer, Makrana by which query licence of the petitioners was cancelled and the order dated 25.7.2006, by which revision petition of the petitioners was dismissed by the Government. Petitioners are query licence holders since 17.9.1988. Their licence was renewed from time to time, which was valid upto 31.12.2004. When the question of renewal arose, petitioners were required by the Mining Engineer by notice dated 15.10.2004 to show the proof of deposit of Rs.18,400 towards the arrears of rent and interest. Petitioner received this notice on 30.10.2004. They deposited the amount on 1.12.2004 and also obtained N.O.C. of the Pollution Board dated 17.7.2004, but it could not be produced in time. For such default on the part of petitioners, respondents have taken the extreme step of cancelling their query licence. Learned 2 counsel cited the judgement of coordinate bench of this Court in M/s. Neel Kanth Chemical Works, Jodhpur vs. State & Ors., S.B. Civil Writ Petition No.1241/1980 decided on 10.10.1980. It is argued that for default of such a minor nature, extreme penalty of cancellation of query licence should not be awarded. The respondents should consider imposing any lesser penalty. Per contra, Shri Zakir Hussain, learned Additional Government Counsel appearing for the respondent-State has argued that notice was not issued for the first time on 15.10.2004. In fact, the first notice was served on 24.11.2003 much before the lease period was to expire on 31.12.2004 requiring the petitioners to pay the difference of rent amount of Rs.3,750/- and interest of Rs.14,650/-. He was also to produce the surety for differential amount of Rs.750/- by way of National Saving Certificate. The petitioners did not fully complete the said requirement within time and merely deposited the amount by 1.12.2004. They however still did not furnish the National Saving Certificate for the amount of Rs.750/- and N.O.C. The second notice was issued on 16.5.2004 calling upon him to produce certified N.O.C. of the Pollution Control Board. When no one received the said notice at the site of the mine, it was affixed thereabout. Reminder notice was issued to the petitioner on 15.10.2004 and when he 3 failed to make compliance of that notice till 9.11.2004, the query licence was cancelled and possession was taken back of the mining area on 18.11.2004. Learned counsel submitted that petitioners are not entitled to any indulgence by this Court. It is therefore prayed that the writ petition be dismissed. Having heard the learned counsel for the parties and perused the material on record, I find that as far as the no objection certificate is concerned, the same was issued to the petitioners by the Pollution Control Board as far back on 17.7.2009, thus it is not in dispute that the certificate was issued about 3 months before the date of notice dated 15.10.2004. Amount i.e. 14,650/- was also deposited by the petitioners on 1.12.2004 as is evident from the order passed by the Government rejecting his revision petition. The petitioners were merely then required to comply with the remaining deficiency pointed out by the respondents that they should have produce national saving certificate of Rs.750/- as demanded. At this stage, learned counsel appearing for the respondent has argued that N.O.C. which was deposited by the petitioners at that time may not be valid for the present. He further submitted that during the intervening period, the licence fee under Rule 28(1) of the Rajasthan Minor Mineral 4 Concession Rules may have undergone increase on various dates. It may be true that this Court has to consider that validity of the action of the respondents on the basis of the facts as obtaining on the date on which the impugned order was passed. The query licence of the petitioners was cancelled by order dated 9.11.2009 and it is validity of that order, which has to be examined. Considering the overall facts and circumstances of the case, I find that fault of the petitioners is not such, which could warrant or justify the cancellation of licence. However, to the extent of the concern expressed by learned Additional Government Counsel about the increase in the licence fee, learned counsel for the petitioners submits that they have already deposited such revised fee upto 31.12.2010. Even then, this is subject matter of verification by the respondents. I am of the view that the cancellation of query licence by the respondents, cannot be held to be tenable in law. In the result, this writ petition deserves to be allowed and is accordingly allowed. The impugned orders dated 9.11.2004 and 25.7.2006 are quashed and set aside. The respondents are directed to restore the query licence of the petitioners. Petitioners are however directed to pay the licence fee for the entire intervening 5 period at revised rate and also deposit the national saving certificate of Rs.750/- which does not appear to have been deposited so far. They may also deposit any other due which the respondents may now convey after verifying from the record for the intervening period. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/-