Court No. - 40
Case :- WRIT - C No. - 35348 of 2018 Petitioner :- Dharmendra Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Devbrat Mukherjee Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the State.
A Division Bench of this Court passed the following order on 25th October, 2018:-
"While questioning correctness of the order dated 8.10.2018 passed by the District Magistrate, Chitrakoot invoking powers under Rule 60 of U.P. Minor Minerals (Concession) Rules, 1963 cancelled the mining lease executed in favour of the petitioner to have mining operations for minor mineral bolder.
The argument advanced by learned counsel appearing on behalf of the petitioner is that condition precedent to invoke the power under Rule 60 of the Rules of 1963 is that an opportunity of hearing is required to be given to the lessee but in the instant case no such opportunity was given. It is further submitted that the reason given for cancelling the mining lease too is non extent as the ban said to be imposed has already been lifted. It is further submitted that the act impugned is absolutely without jurisdiction as the District Magistrate is having no authority to pass an order for restrainment as made under the order dated 8.10.2018.
While meeting with the arguments advanced learned Standing Counsel states that the petitioner is having an efficacious alternative remedy under Rule 77 and Rule 78 of the Rules of 1963. According to learned Standing Counsel there is no just reason to approach the Writ Court ignoring the statutory alternative remedy of appeal.
While meeting with this preliminary objection learned counsel appearing on behalf of the petitioner states that if an act is challenged on the count of violation of principle of natural justice and also being alleged to be without jurisdiction then the doctrine of approaching Writ Court after exhausting of alternative remedy is required to be ignored and in the instant matter there is apparent violation of principle of natural justice.
From perusal of the order dated 8.10.2018 it appears that no opportunity of hearing was given to the petitioner before passing the order aforesaid.
Learned Standing Counsel to verify this facts wants some time.
Time prayed for is allowed. Let this petition for writ be listed on 29.10.2018 as fresh case."
Today, learned Standing Counsel produced the written instructions contending that the petitioner had been put to notice on 20th August, 2018 but the learned Standing Counsel could not satisfy the Court that such notice was proposing the cancelling the lease of the petitioner. In such circumstances, there being no notice to the petitioner for cancellation, the impugned order dated 8th October, 2018 is clearly in violation of principles of natural justice and cannot be sustained. It is, accordingly, quashed.
The writ petition is allowed with liberty to District Magistrate, Chitrakoot to pass a fresh order, in accordance with law.
Order Date :- 29.10.2018 Atmesh