Allahabad High Court
M/S. Bharat Earth Movers vs State Of U.P. And 3 Others on 7 February, 2020
Bench: Bala Krishna Narayana, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- WRIT - C No. - 4537 of 2020 Petitioner :- M/S. Bharat Earth Movers Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Nancy Kesarwani,Mukesh Prasad (Senior Adv.) Counsel for Respondent :- C.S.C. Hon'ble Bala Krishna Narayana,J.
Hon'ble Ravi Nath Tilhari,J.
The petitioner is permitted to delete the prayer no.(ii) from the prayer clause and to rearrange the serial number.
Heard Sri Mukesh Prasad (Senior Advocate) assisted by Ms. Nancy Kesarwani, learned counsel for the petitioner and learned Standing Counsel for the respondents.
This writ petition has been filed by the petitioner with the following prayers :-
"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.1.2020 passed by the District Magistrate, Kaushambi.
(ii) issue a writ, order or direction in the nature of mandamus directing the District Magistrate, Kaushambi to consider and decide the prayer of the petitioner for adjustment and refund of the balance amount with interest after adjusting the royalty on the quantity of the minerals, excavated by the petitioner.
(iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iv) award cost of the petition to the petitioner."
It is contended by learned counsel for the petitioner that the petitioner was granted a mining lease on 8.1.2019 for a period of five years in respect of Khand no. 1545 and 1540 measuring 24.28 hectares situated in village Mahewa, Tehsil Manjhanpur, District Kaushambi, for excavating minerals worth Rs. 3,60,000/- per cubic meters.
After obtaining Environmental Clearance Certificate, the petitioner received a notice on 1.12.2018 issued by respondent no.3 by which the petitioner was directed to deposit Rs.5,88,60,000/- as 2nd and 3rd instalment failing which action shall be taken under Section 58 of The Uttar Pradesh Minor and Minerals (Concession) Rules, 1963. In response to the aforesaid notice, the petitioner submitted his reply before the District Magistrate, Kaushambi on 19.12.2019, copy whereof has been filed as Annexure - 20 to the writ petition. However, the District Magistrate, Kaushambi by the impugned order dated 14.1.2019, cancelled the petitioner's lease and also blacklisted him although the show cause notice issued on respondent no.4 contained no mention of blacklist.
The impugned order has been challenged by learned counsel for the petitioner on the following grounds :-
"(i) That no opportunity of personal hearing was given to the petitioner before passing the order impugned by which not only the lease of the petitioner was cancelled, his security amount was forfeited but he has also been blacklisted for two years.
(ii) The show cause notice was issued to the petitioner by Senior Mines Officer but the order impugned has been passed by the District Magistrate.
(iii) Nothing has been stated in the show cause notice regarding blacklisting of the petitioner but in the impugned order, the petitioner was also blacklisted without giving any opportunity of hearing as such the order of blacklisting passed against the petitioner is in complete violation of principles of natural justice."
Per contra, learned Standing Counsel submitted that since the terms and conditions contained in the lease deed dated 22.2.2018 were violated by the petitioner, therefore, the action was rightly taken by respondent no.2. It was further contended that the order impugned in the writ petition is absolutely just and valid order which does not merit any interference by this Court.
We have heard learned counsel for the parties and perused the material brought on record.
Upon perusal of the record we find that the show cause notice was issued by the Additional District Magistrate (Finance and Revenue)/Officer Incharge (Mines), Kaushami - respondent no.3, but the impugned order has been passed by District Magistrate/District Officer, Kaushambi - respondent no.2.
Apart from the same, it is also clear that although the show cause notice did not require the petitioner to show cause as to why he should not be blacklisted but while passing the impugned order, the petitioner has also been blacklisted for a period of two years.
"The order impugned is in two parts :-
(i) recovery against the petitioner.
(ii) blacklisting of the petitioner for two years."
In so far as the first ground of challenge is concerned, since it is clear from the record that the show cause notice in this case was issued by Additional District Magistrate (Finance and Revenue)/Officer Incharge (Mines), Kaushami - respondent no.3 but the order was passed by District Magistrate/District Officer, Kaushambi - respondent no.2.
In view of above, we are of the opinion that the order passed by the District Magistrate/District Officer, Kaushambi - respondent no.2. is in complete violation of the principles of natural justice and cannot be sustained.
Insofar as the blacklisting of the petitioner is concerned, From perusal of the impugned order, we find that the respondents have proceeded on the basis of a show cause notice. Nothing has been stated in the show cause notice regarding blacklisting of the petitioner. Learned Standing Counsel has not been able to refute this fact on record. In our opinion, the issue which was not raised even in the show cause notice, therefore, could not be made the basis for blacklisting of the petitioner.
The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/ breaches complained of are not satisfactorily explained. When it comes to black listing, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action. In the case of Gorkha Security Services Vs. Government (NCT of Delhi) and others (2014) 9 SCC 105, the Supreme Court was pleased to hold that it is incumbent on the part of the department to state in show cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to show cause against the same. Relevant paragraph namely paragraph 27 of the aforesaid judgement is quoted below:-
"27. We are, therefore, of the opinion that it was incumbent on the part of the Department to state in the show cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same. However, we may also add that even if it is not mentioned specifically but from the reading of the show cause notice, it can be clearly inferred that such an action was proposed, that would fulfill this requirement. In the present case, however, reading of the show cause notice does not suggest that noticee could find out that such an action could also be taken. We say so for the reasons that are recorded hereinafter."
In view of the foregoing discussion, we find that since the impugned orders have been passed in gross violation of principles of natural justice, the same cannot be sustained and is liable to be quashed.
We allow the writ petition and quash the impugned order dated 14.1.2020. It will be open to the respondents to proceed against the petitioner afresh in accordance with law.
Order Date :- 7.2.2020 Shalini