KHAN MOHAMMED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner Khan Mohammed was granted a mining lease for soap stone and Asbestos near village Dhelana, Tehsil Kherwara, District Udaipur in the year 1955 for a period of 10 years The said lease was renewed for a period of another 10 years upto 1975. It appears that a prospecting licence had been granted in favour of Messrs Ashok Minerals and demarcation of the land covered by the said prospecting licence had to be done and in that connection a letter was addressed by the Mining Engineer, Udaipur on 22nd March, 1975 to Messrs Ashoka Minerals that the demarcation would be done on 14th April, 1975 A copy of the said letter was also sent to the petitioner. No demarcation was, however, done on 14th April, 1975 but it appears that on 16th April, 1975 the demarcation was done and during the course of demarcation it was discovered that the petitioner was working a pit which was falling 700 ft. outside the demarcated lines C and D of the land leased out to him. Thereupon a notice (Ex. 3) dated 19th June, 975 was served on the petitioner by the Mining Engineer, Udaipur, whereby the petitioner was informed that as a result of the inspection made on 16th April. 1975 of the area leased to him, it has been found that a pit being 700 ft. outride to line G and D and that no lease had been granted to the petitioner in respect of the said land. By the notice aforesaid, the petitioner was required to show cause why action should not be taken against him under Sub -section (4) and (5) of Section 21 of the Mines and Mineral (Regulation and Development) Act, 1957. In response to the said notice, the petitioner submitted his reply wherein he asserted that the pit which was being worked by the petitioner was within the area leased out to him under the lease and that he had been working the said pit since 1964 and that inspection had been made with regard to the working of the said pit from time to time by the authorities and no objection was ever taken with regard to the said working In that context tae petitioner submitted the copy of the report of inspection dated 27th February, 1968 of Shri S.K. Sharma, the then Mining Engineer, Udaipur. As regards the inspection made on 16th April, 1975, the petitioner submitted that no inspection was done of the sectioned area in the possession of the petitioner in his presence and no intimation about the inspection was ever given to him In his reply aforesaid, the petitioner prayed for finishing a copy of the inspection report with regard to the inspection made on 16th April, 1975 and stated that on the receipt, he would file a reply in that regard appears that the copy of the inspection report with regard to the inspection made on 16th April, 1975 was not supplied to the petitioner. By his latter dated 28th August, 1975, the Miring Engineer, Udaipur, informed the petitioner that he had worked unauthotisedly outside the lease area in violation of the terms and conditions of the lease deed and he was required to show -cause why action to determine the lease under part IX (2) of the lease agreement be not taken against him. By the letter aforesaid, the petitioner was also informed that he had unauthorized removed 1015 tonnes of mineral and the petitioner was required to deposit Rs. 40, 600/ -Rs. 40/ -per tonne as the cost of the said mineral within 10 days failing which action to recover the amount would be taken under the Land Revenue Act. In the letter aforesaid, the Mining Engineer has observed that an inspection of the site had been made by the Assistant Mining Engineer in the presence of Shri D.P, Semi, Surveyor, on 30th May, 1975 and that as a result of the said inspection it was observed that the petitioner had erected new false pillars which were not tallying with any of the references given on the demarcation report attached with the lease agreement Aggrieved by the aforesaid order of the Mining Engineer, Udaipur dated 28th August, 1975, the petitioner filed a revision petition before the Central Government under Rule 54 of the Mineral Concession Rules, 1960. The said revision petition was dismissed by the Central Government by its order dated 15th February, 1977. Aggrieved by the aforesaid order of the Mining Engineer dated 28th August, 1975 and the order of the Central Government dated 15th February, 1977, the petitioner has filed this writ petition for the issue of the writ of certiorari to quash the said orders.

(2.) , Shri H.M. Parekh the learned Counsel for the petitioner, has submitted that the order dated 28th August, 1975 passed by the Mining Engineer is null and void having been passed in violation of the principles of the natural justice without affording a reasonable opportunity to the petitioner to controvert the allegations that the petitioner had erected false new pillars and that thereby he had included the area of the pit worked by him utnauthorisedly within the area leased out to him The counsel submits that the finding of the Mining Engineer, in this behalf is based on the reports of inspection which were made 16th May, 1975 aid 30th May, 1975 but the copies of the said reports were not supplied to the petitioner and the petitioner was not afforded any opportunity to make his submissions to controvert what was stated in the said reports. The counsel for the petitioner also submits that the reports aforesaid do not constitute legal evidence and that in any event from the said reports, it was not established that the original pillars which are now standing on the land were set up subsequently. The learned Counsel submits that the finding of the Mining Engineer that the petitioner had dismantled the old pillars and the pillars which stand today were constructed subsequently, is based on no evidence. As regards the order of the Central Government, the submission of the counsel is that the order of the Central. Govt, cannot be sustained.

(3.) IN my view, the order of the Mining Engineer dated 28th August, 1975, holding that the petitioner had dismantled the old pillars and had erected false new pillars and that he was in wrongful possession of the pit which is worked by him cannot be sustained in as much as the said order has been passed in violation of the principles of natural justice. It is settled law that an authority exercising the power to pass an order to the prejudice of the citizen must afford to the person concerned an opportunity of meeting the case against him and to controvert the evidence which is sought to be relied against him The Supreme Court, in the context of the reasonable opportunity contemplated under Article 311(2) of the Constitution, has laid down that it is incumbent upon the Government to furnish a copy of the report of the Enquiry Officer to the Government servant against whom disciplinary action h proposed to be taken so that he may make his submission with regard to the same and if an order of punishment is passed without the copy of the report of the Enquiry Officer being furnished to the Government servant then that order cannot be sustained : State of Maharashtra v. Bhai Shankdr Avalram Joshi and Anr. : [1969]3SCR917 . Similarly there are decisions of the Supreme Court wherein it is laid down that if there is an adverse material contained in any report which is sought to be relied against a person then before taking an action against him on the basis of the said report, the contents of the said report should be disclosed to the person concerned, so that he may have an opportunity of giving an explanation with regard to the same : Partabpura Can Ltd. v. Can Commissioner : [1969]2SCR807 .