IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 776 of 1998 STATE OF RAJ. & ORS V/S MANGI LAL Mr. N.M. Lodha, Addl. Advocate General, for the appellants. Date of Order : 4.3.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- This appeal has been filed by the State, seeking to challenge the order of the learned Single Judge dated 09.10.96, accepting the writ petition, with compensation of Rs.5000/-, and quashing order dated 3.1.89, Annexure/2. Vide Annexure/2, the Assistant Mining Engineer had cancelled the quarry license, forfeiting the security amount, on account of quarry being not operated for more than three months, which amounted to violation of Rule 29 (2) of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as the Rules). This order was passed, exercising the powers under Rule 30(2) of the Rules. The learned Single Judge found, that according to Rule 29(2) of the Rules, cancellation of quarry license is . confined to eventuality of failure of the licensee to start the work, or not working for a continuous period of three months, and the power under Rule 30(2) is wider in its scope, as it comprehends within its fold about breach of any of the terms of license by a licensee, or breach of any of the provisions of the Rules, including Rule 29(2), or failure to comply with the directions given by the Mining Engineer/Assistant Mining Engineer, within the period specified by him. Then it was also found, that under Rule 29(2), cancellation of quarry license is permissible, while in Rule 30(2), a penalty not exceeding Rs.250/- and penalty of cancellation of quarry license with forfeiture of security deposits and license fee is only an alternative discretionary penalty. With these observations, it was concluded, that Annexure/2 having been passed without giving 15 days show cause notice, is per se illegal, and without jurisdiction. Then, some other aspects have also been considered, and the aforesaid judgment was passed. With this narration of the matter, however, what we further find is, that the order Annexure/2 is dated 3.1.89, and the writ petition was filed on 19.4.89, wherein, on 21.4.89, a show cause notice was issued, and interim stay was granted, staying the operation of the order Annexure/2. Obviously, with the result that at least since 21.4.89, 2 . till passing of the impugned order by the learned Single Judge dated 9.10.96, the respondents did operate the mine. At the same time, this appeal was admitted on 10.8.98, and on that very day, interim stay was granted, staying the impugned order of the learned Single Judge dated 9.10.96. The notices of the appeal were personally served on the respondent on 9.10.98, for hearing on 27.11.98, and despite service, the respondent has not entered appearance, even though, as noticed above, the order of the learned Single Judge has been set aside. Obviously, therefore, it was required to be concluded, that since 10th of August, 1998, the respondent is not operating the mine. However, when the case was taken up today, we asked learned counsel for the appellants to inform the Court, the factual position, as to whether the mine is being operated or not, and in response thereto, Mr. Lodha, learned Additional Advocate General has made available for our perusal, a letter No.201 dated 4.3.08, of the Mining Engineer, Bijoliya, addressed to the learned Additional Advocate General, sent by fax, informing, that the quarry license for the plot in question was granted to the present respondents on 9.12.88. It was cancelled on 3.1.89, and against this cancellation, the matter is pending in the High Court, and that, as on the date, the plot is lying vacant, and no mining work is carried on. This obviously 3 . shows, that the area is not being operated by the respondent. This sequence of events makes us to assume, that perhaps it was for this reason, that the respondents did not appear before this Court, despite service of the notices. In these circumstances, more so, when substantially, the learned Single Judge has set aside the order dated 3.1.89, Annexure/2, on the ground of required notice having not been given, and the like, in our view, instead of going into the necessity of distinction between Rule 29(2) or 30 (2) of the Rules, since the operation of the order of the learned Single Judge has been stayed way back in 1998, the term of quarry license being also ten years, and as on the date, the plot in question is lying vacant, dismissing the appeal would have effect of restoring the quarry license, which we are not inclined to. The Special Appeal, therefore, is allowed. The impugned order is set aside, with no order as to costs. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. ms rathore 4