1 D.B. CIVIL SPECIAL APPEAL (WRIT) NO.504/2003 (Abdul Jabbar Vs. The State of Raj. & Ors.) DATE OF ORDER:29.03.2007 HON'BLE MR.JUSTICE RAJESH BALIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.M.R.Singhvi, for the appellants Mr.L.R.Upadhyaya, Government Advocate BY THE COURT(PER HON'BLE MR.BALIA J.) Heard learned counsel for the parties. This appeal is directed against the order dated 11.2.2002 passed by the learned Single Judge. The short order reads as follows:- “This writ petition has been filed by the petitioner with the prayer that Annexures 11,12 & 13 may be quashed. The respondent-Department has cancelled the lease of the petitioner because there was a happening of accident at the quarry which was not communicated to the authorities as required under law. Subsequent thereto, proceedings were initiated against the petitioner and his licence was cancelled on 3.2.96. The possession of the mine has already been taken. Learned counsel for the petitioner has not been able to assail the order. No significant arguments have been raised. There is no force in the writ petition. The writ petition is dismissed.” Apparently, since the learned Single Judge has dismissed the writ petition solely on the ground that as a 2 consequence of the impugned order, the quarry licence granted in favour of the petitioner was cancelled and possession of the mine has already been taken over. However, the learned Single Judge has not decided the writ petition on merits. It is precisely for the reason that cancellation has been made and he has been dispossessed from the licensed quarry that against the cancellation of his quarry licence the appellant has approached this Court. The fact that impugned orders have been passed and possession of the licensed quarry has been taken by itself cannot be a ground for dismissing the writ petition but provides cause of action to the quarry licence holder to seek the remedies. Taking other view would mean no illegal action can be challenged when orders are passed or implemented by invoking extraordinary jurisdiction under Article 226 of the Constitution of India. Apparently, substantive contentions were raised by the petitioner about the cancellation of quarry licence without affording him any opportunity of hearing seriously affects substantive rights of the petitioner. Moreover, the petitioner has placed on record the alleged service of notice for removing the defects pointed out to the petitioner purported to have been served on him by affixture on the crane lying on the petitioner's mine, the petitioner has 3 specifically denied that any process server have come on the quarry site. He has also averred that petitioner's residence is within 100 Meters radius of the Mining area and within the knowledge of Mining Department and its officer and the notices could have been served on him personally. He has also placed on record an order passed subsequent to cancellation of the quarry licence, which approves petitioner's appointment as an authorized manager of the quarry. If the authorization of the manager to supervise the quarry has been issued after cancellation of the quarry, it speaks volume about the manner in which the quarry has been cancelled. If the quarry licence was already cancelled for what purpose an order authorizing petitioner to function as authorized manager was made, does not answer reasoning. Moreover the alleged incident is stated to have taken place in 1992 and the notice of which has been stated to have been served in August, 1995, nothing is shown as to when the Department came to know about the accident in the first stance before action has been initiated against the petitioner. One is also not wiser from the notice, which purport to speak about the rectifying the defects pointed out by the office. The knowledge of the accident having already received by the department, how its rectification was possible except by issuing a show cause notice and calling for personal hearing. Apparently, no such notice appears to have been given before 4 cancellation of the quarry licence. Notice was only pointing out defects required to be rectified. But no show cause was issued before imposing penalty of cancellation of quarry licence. We further find that as late as on 28th August, 2006 in respect of the very same quarry the petitioner has been addressed a letter apprising the scheme for rectification of defects as mentioned in prohibitory order imposed under Section 22(3) of the Mines Act, 1952 in respect of Plot No.223/1A situated at Gunawati Rang Marble Mine. It further mentions that the documents submitted by the appellant were examined in the directorate approved the scheme of rectification of defects subject to the condition stated in the communication. The only condition mentioned therein was that height of benches shall not exceed 6.0 M. and they shall be formed from top downwards only. Issuance of above letter shows that there is no good reason for canceling the quarry licence. This letter has been issued after 10 years further goes to show that impugned cancellation order had been made without application of mind and considering that every infraction of rule does not necessarily entail only one consequence i.e. Of cancellation of quarry licence. The order was passed without giving adequate 5 opportunity of hearing to the petitioner. Considering all these aspects the impugned orders Annexures 11,12 & 13 cannot be sustained. Consequently, the appeal is allowed. The order under appeal passed by the learned Single Judge is set aside. The writ petition is allowed and the impugned orders dated 3.2.96 (Annex.11), 20.1.98(Annex.12) and 15.12.98(Annex.13) are quashed. No order as to costs. (BHANWAROO KHAN) J. (RAJESH BALIA) J. BKS/-