1. The instant intra-court appeal is against the order/judgment dated 25.09.2018 passed by learned Single Judge in W.P.(C) No.2613 of 2005 whereby
and whereunder the writ court has declined to interfere with the order passed by the revisional authority in Revision Case No.59 of 2004.
2. The brief facts of the case which are necessary to be enumerated herein for the adjudication of the lis are as under:
The license to carry out the stone mining has been granted in favour of the appellant/writ petitioner over an area of 0.82 acres of land situated at Plot
No.418, Mouza Kulkulidanga, P.S. Shikaripara, District Dumka for a period of five years with effect from 16.07.1994. The lease was further renewed
for a period of 10 years subsequently.
The respondent authority has conducted an inspection on 19.01.2004 in which it was found that the appellant/writ petitioner is carrying out mining
operation outside the lease area and that no boundary pillars and sign boards have been affixed and as such the amount of Rs.12,94,009.00/- was
quantified as the amount of royalty for the alleged mining done outside the lease area.
The authority has issued show cause notice on 24.04.2004 which was replied by the appellant/writ petitioner vide reply dated 21.05.2004 and again
another reply was sent by post on 12.06.2004 making reference therein about the reply dated 21.05.2004, denying the allegation of carrying out the
mining work outside the lease area.
The lease granted in favour of the appellant/writ petitioner subsequently was terminated vide order dated 29.05.2004, communicated vide memo
No.1164 dated 16.06.2004. The appellant/writ petitioner had approached before Deputy Commissioner against the order dated 29.05.2004 by which
the lease was cancelled prematurely and also against the allegation of conducting mining operation beyond the lease area but the same has been
rejected by the Deputy Commissioner against which revision was preferred being Revision Case No.59 of 2004 before the Mines Commissioner,
Jharkhand, Ranchi which was dismissed vide order dated 02.02.2005/09.03.2005 against which writ petition has been filed being W.P.(C) No.2613 of
2005, subject matter of the present intra-court appeal, which has been dismissed by the learned Single Judge vide order dated 25.09.2018.
3. Mr. Kumar Vaibhav, learned counsel for the appellant/writ petitioner has submitted that the learned Single Judge has not appreciated the fact about
non-service of the show cause as also about non-consideration of reply submitted by the appellant/writ petitioner on 21.05.2004 and 12.06.2004
discarding the said reply by holding in the impugned order that the show cause reply dated 21.05.2004 cannot be said to be a reply on the ground that
no averment to that effect has been made in the writ petition as also the reply dated 21.05.2004 has not been filed by the appellant/writ petitioner while
the show cause reply dated 12.06.2004 has been held to be an afterthought and was after passing of the order of cancellation of mining lease by the
Deputy Commissioner vide order dated 29.05.2004
The fact about filing no reply to the show cause is absolutely incorrect since the reply was filed before passing of the order dated 29.05.2004 i.e., on
21.05.2004 which got substantiated even from the subsequent reply dated 12.06.2004 wherein the reference of the show cause reply dated 21.05.2004
has been made.
4. Per contra, learned counsel for the respondent-State of Jharkhand has submitted that the appellant/writ petitioner has not chosen to file reply and
stand which is being taken about filing of the reply dated 21.05.2004 which is prior to the cancellation of the mining lease on 29.05.2004, the same has
not been submitted by the appellant/writ petitioner and as such the learned Single Judge has rightly taken this fact into consideration by negating the
claim of the appellant/writ petitioner about non-consideration of reply dated 21.05.2004.
It has further been contended that the reply dated 12.06.2004 has not been considered by the authority on account of the fact that prior to that the
mining lease has already been cancelled by the Deputy Commissioner on 29.05.2004 and hence there was no occasion before the authority to consider
the said reply which has been taken note by the learned Single Judge and hence the ground which is being agitated by the appellant/writ petitioner is
not at all fit to be considered.
He further contends by referring to paragraph-4 of the order passed by the learned Single Judge wherein the prayer pertaining to cancellation of lease
deed since has become infructuous by the efflux of time since the mining lease area has already been taken possession of by the respondent on
29.06.2004, therefore, the said prayer has not been pressed confining the writ petition to the demand which has been raised against the appellant/writ
petitioner on the basis of the allegation which were leveled against the appellant/writ petitioner, as such, the appellant/writ petitioner is only to assail
the part of the order whereby and whereunder the demand has been agitated and as such the case which is being made out by the learned counsel for
the appellant/writ petitioner that the demand has been issued without providing any opportunity of hearing is not based upon any foundation since it is
the appellant/writ petitioner who has chosen not to submit reply in time.
The learned counsel on the basis of the aforesaid submission has submitted that the learned Single Judge by showing no interference with the order of
the revisional authority has committed no illegality.
5. This Court having heard the learned counsel for the parties and after going across the order passed by the learned Single Judge, more particularly at
paragraph-4, whereby and whereunder the submission of the learned counsel for the appellant/writ petitioner has been noted down which reads
hereunder as:
“4. Counsel for the petitioner, at the outset, submits that so far as the grievance regarding non-renewal of lease is concerned, the same
has become infructuous by the efflux of time and he also submits that the mining lease area, which is involved in this case, was taken
possession of by the respondents on 29.06.2004 which is apparent from the impugned order as contained in Annexure-1 to this writ petition.
Accordingly, he submits that this writ petition is now confined to the demand which has been raised against the petitioner on the basis of the
allegations which were levelled against the petitioner.â€
6. It is, thus, evident that the grievance pertaining to non-renewal of lease since according to the learned counsel for the appellant/writ petitioner has
become infructuous by the efflux of time as also submission has been made that the mining lease area which is involved in this case since was taken
possession of by the respondents on 29.06.2004 as would be evident from Annexure-1 to the writ petition as such the writ petition has been confined
to the demand which has been raised against the appellant/writ petitioner on the basis of the allegation which were leveled against the appellant/writ
petitioner.
7. However, learned counsel for the appellant/writ petitioner has advanced his argument pertaining to the cancellation of the mining lease but the said
argument is not worth to be considered for the reason that once the right to challenge the cancellation of mining lease has been forgone before the
first court, there is no occasion for the appellant/writ petitioner to assail the same in the intra-court appeal, accordingly the prayer of questioning the
cancellation of mining lease since has been not pressed by the appellant/writ petitioner before the first court, therefore, the same has not been
entertained by this Court.
8. However, the learned counsel for the appellant/writ petitioner has advanced his argument pertaining to the demand which according to the learned
counsel is also without providing any opportunity of hearing and in absence of appellant/writ petitioner the inspection was conducted on 01.03.2004,
basis upon which the unilateral decision has been taken about operation of mining work beyond the lease area.
9. According to the learned counsel since the opportunity of hearing has not been provided to the appellant/writ petitioner even before coming to the
conclusion about the operation of mining lease beyond the lease area, therefore, the demand issued against the appellant/writ petitioner is not
sustainable for want of violation of principles of natural justice.
10. It is evident from the material available on record that the first show cause notice was issued on 11.02.2004 by the District Mining Office, Dumka
as contained in Memo No.198 (Annexure-3) whereby and whereunder the appellant/writ petitioner has been directed to make payment of arrears of
royalty by 24.02.2004. The appellant/writ petitioner has not complied with the said direction, therefore, show cause notice was issued on 28.02.2004 by
the District Mining Officer, Dumka through registered post directing the appellant/writ petitioner either to deposit the amount on account of operation
of mining work beyond the mining lease area which is in violation to the provision of Rule 4(1) of the Bihar Minor Minerals Concession Rules, 1972
resulting in an offence under the provision of Rule 40(1) of the said Rule.
11. It is evident from the said notice dated 28.02.2004 that on 01.03.2004 and 02.03.2004 the measurement of the mining was decided to be conducted
and as such the appellant/writ petitioner was directed to be present himself or through his representative. The inspection was conducted on 01.03.2004
and it was found on inspection that the mining operation was conducted beyond the license lease hold area and as such the royalty to the tune of
Rs.12,94,009/- has been casted as liability upon the appellant/writ petitioner on the basis of the said inspection and in consequence thereof, on
24.04.2004 another notice was issued by the District Mining Officer, Dumka (Annexure-4).
12. The stand has been taken by the appellant/writ petitioner before the writ court that on 21.05.2004 reply was submitted in pursuance to the show
cause notice dated 24.04.2004 but the same has not been taken into consideration and again reply was submitted on 12.06.2004 making reference of
the reply dated 21.05.2004 but has not been considered since the demand has been raised which is in violation of principles of natural justice but the
learned Single Judge has not believed upon the version of the appellant/writ petitioner about the submission of reply dated 21.05.2004 before the
competent authority on two grounds, firstly, that no such statement has been made in the writ petition and secondly, the reply dated 21.05.2004 has not
even been filed by the appellant/writ petitioner along with the writ petition as would appear from paragraph-16 of the order passed by the learned
Single Judge, which reads hereunder as:
“16. The contention of the petitioner that a show-cause reply was filed on 21.05.2004, which is mentioned in the show-cause reply dated
12.06.2004, is also rejected due to the reason that there is no such averment in the writ petition and the said reply dated 21.05.2004 has not
even been filed by the writ petitioner alongwith the writ petitioner.â€
13. The present intra-court appeal has been filed by the appellant/writ petitioner but no ground questioning the finding recorded at paragraph-16 of the
order passed by the learned Single Judge has been made, save and except, the fact that the reply dated 21.05.2004 has been submitted as also
referred in the subsequent reply dated 12.06.2004 but the question is that what prevented the appellant/writ petitioner in making specific statement in
the writ petition about submission of reply dated 21.05.2004 before the authority.
It is further required to refer herein that the reply dated 21.05.2004 has not been brought on record in the present appeal also.
14. In view of the said factual backdrop if the learned Single Judge has discarded the version and reply about non-observance of the principles of
natural justice, the same cannot be said to be having any fault, it is for the reason that if the show cause has been issued and received by the
concerned, it is incumbent upon the concerned to make reply and in case he choses not to file any reply then he cannot take the plea of violation of
principles of natural justice.
15. The learned Single Judge has further taken into consideration the fact about the reply dated 12.06.2004 wherein the reference of the reply dated
21.05.2004 has been made which according to the learned Single Judge is an afterthought, the said finding is also not to be discarded as because if the
appellant/writ petitioner has already filed reply on 21.05.2004 and the order has been passed on 29.05.2004 without considering the reply dated
21.05.2004, it ought to have been brought on record by the appellant/writ petitioner by making specific stand by enclosing the copy of the reply dated
21.05.2004 about its non-consideration but the appellant/writ petitioner has tried to impress upon the learned Singe Judge by emphasizing upon the
reply dated 12.06.2004 wherein the reference of the reply dated 21.05.2004 has been made, it is on account of the fact that the reply dated 12.06.2004
cannot be considered after the order passed by the Deputy Commissioner on 29.05.2004 and as such only in order to make out a case of non-
consideration of reply dated 21.05.2004 the reference of the reply dated 21.05.2004 has been made in the reply dated 12.06.2004 and hence, the same
has been said to be an afterthought and was after passing of the order of cancellation of mining lease vide order dated 29.05.2004.
16. On the basis of the observation made hereinabove, in our considered view, the learned Single Judge has considered entire aspects of the matter in
right perspective and as such the order cannot be faulted with.
17. In the result, the appeal is held to be devoid of merit. Accordingly, same is dismissed.
