Judgment:
P.K. Balasubramanyan, C.J.
1. A long term lease was granted to the petitioner under the Orissa Minor Mineral Concession Rules, 1990 (hereinafter referred to as the 'Rules'). That lease enured till 30.6.2003. While the lease was continuing, Annexure- 4 notice was issued informing the petitioner that there was default on his part to report about the death of a person in his mining area as contemplated by Rule 14 (6) of the Rules. By Annexure-5 the petitioner-lessee sought to contend that he was not available in the locality for a period of three months, that somebody had trespassed into his mining area without his knowledge and that he had no responsibility for the death that had occurred and that was the reason he had not reported the death. The authority concerned, the Tahasildar, (opposite party No. 1) found the explanation of the petitioner that he was away from the locality for a period of three months, and that a trespasser had entered the mining area unacceptable, especially in the context of the fact that the petitioner had submitted monthly returns as envisaged by Rule 14 of the Rules, even for the period in question. The Tahasildar found that there was a clear transgression of Rule 14 (16) of the Rules by the lessee, and consequently, cancelled the lease sanctioned in his favour. The petitioner filed an appeal under Rule 23 of the Rules. The appellate authority, the Sub-Collector, agreed with the Tahasildar in holding that the explanation of the writ petitioner for his failure to report the death was not acceptable and that the petitioner had failed to report the fact of death of a person in the lease-hold. The appellate authority, therefore, held that there was a clear transgression of Rule 14 (16) of the Rules and the order of cancellation of the lease was justified. Thus, the cancellation of the mining lease was confirmed. It is challenging this appellate decision that the writ petitioner has approached this Court with this writ petition.
2. We may now read Rule 14 (16) of the Rules.
'(16) All accidents involving injury or loss of life or loss or damage to property should be reported forthwith to the Collector of the District.'
In fact, a death had occurred in the lease-hold property of the petitioner, and undoubtedly the death was not reported by the petitioner. Rule 24 of the Rules provides for penalties for violation of the Rules or the conditions of the grant or the consequences arising there from. Rule 24 (2) provides that in case of breach of any condition of the lease other than those mentioned in Sub-rule (15) of Rule 14, the Competent Authority may give notice of thirty days to the lessee to rectify the defects within the time specified. If the lessee fails to rectify the defects within the specified time, the Competent Authority may cancel the lease and/or levy a penalty not exceeding one thousand Rupees only. When Annexure-4 notice was issued to the petitioner, the lessee admitted his failure to report the death of a stranger in the lease-hold. He attempted to explain the omission by stating that the death occurred when he was temporarily away from the locality or the village. The person who died was a trespasser or an unauthorised entrant. Though the petitioner explained this fact, same was not accepted by the original authority or by the appellate authority, and we also feel that they were correct in their view, as the petitioner himself filed returns in respect of the period during which the alleged death occurred. But, the fact remains that pursuant to the notice Annexure-4 the petitioner accepted that there was a death and took the plea that he could not intimate the said fact as he was absent during the period in question. It appears to us that Rule 24 (2) contemplates a cancellation of the lease after giving notice of thirty days to the lessee to rectify the defects within the time specified, i.e., relating to safety of the mine or the safety of those who are employed for operation of mining activities. The transgression complained of here is that of failure to report the death of a person inside lease-hold property. No doubt there was an obligation to report to the concerned authority under Rule 14 (16). But, the fact remains that though the petitioner did not forthwith make the report, on receipt the notice admitted that he had not complied with the specific requirements as provided under Rule 14 (16). Thus, it appears that there was no transgression of the condition imposed by Rule 24 (2) justifying cancellation of the lease. Rule 14 (16) only insists on disclosing the information which in this case was not done in time. But. the fact is that the Police had taken up the investigation into the death in question. Even apart from that, though there was failure on the part of the petitioner to give the report of death, pursuant to the notice under Rule 24 (2) that fact had been admitted by the lessee, though the explanation is found to be unacceptable. The omission to report in the first instance cannot be said to be violation of the conditions of Rule 24 (2) of the Rules so as to entitle the authorities to cancel the lease. In that situation, we are not satisfied that the authorities were justified in cancelling the lease. We must be note here that there is no case that the petitioner did not take adequate precautions to keep the mining area out of the reach of others or that there was negligence as a result of which some person had encroached upon the lease-hold area. The only ground for cancellation is that the petitioner failed to report the fact of death. In that situation, we are of the view that the cancellation of the lease is unjustified. The cancellation of the lease has been done for non-compliance with the requirement of Rule 14 (16). After all, Rule 24 (2) also provides for imposition of a penalty by way of fine not exceeding Rs. 1000/- on a person who fails to comply with the terms of Rule 14 (16) of the Rules. We feel that instead of taking the harsh action of cancellation of the lease, the authorities concerned should have levied the lesser penalty. In the view that the punishment imposed on the petitioner is too harsh considering the offence the petitioner has committed, we are satisfied that the punishment of cancellation of the. lease should be replaced by the imposition of a fine of Rs. 1000/- in terms of Rule 24 (2) of the Rules.
3. Learned counsel for opposite party No. 3 contended that after cancellation of lease of the petitioner, a fresh lease was granted in favour of opposite party No. 3 and the right of opposite party No. 3 may be protected. We feel that once we find that the cancellation of lease granted to the petitioner is not liable to be sustained, the necessary consequence must follow. It is seen that lease of the petitioner will continue until 30.6.2003. Since the cancellation is found to be had, it goes without saying that the authorities should not have granted any fresh lease. We, therefore, find no reason to accept the arguments of learned counsel for opposite party No. 3 that the lease granted in favour of opposite party No. 3 may be protected.
4. In the result, we allow the writ petition and quash the orders, Annexures-2 and 1. We set aside the cancellation of the lease of petitioner, and impose on him a fine of Rs. 1000/- in terms of Rule 24 (2) of the Rules. The fine amount of Rs. 1000/- (Rupees one thousand) will be paid by the petitioner within two months from today to the concerned authority. Since the cancellation of the lease is now set aside by this order, it goes without saying that opposite party No. 3 will have no right in respect of the subsisting lease in favour of the petitioner.
5. We also feel that the writ petitioner has to ensure- that safety measures in respect of the lease-hold are properly taken. It is not open to the lessee to take the stand that somebody trespassed into the said property and he was not aware of that fact. The lessee is supposed to take every step to ensure that no outsider trespasses into the property. If there is loss of mineral, it is his duty to straightaway institute a complaint relating to that loss. He cannot take the plea that he was away from the village during the period in question. We, therefore, direct the lessee-petitioner, to take the necessary steps for protecting the lease-hold from strangers and also to take the necessary safety measures to ensure that such accidents do not occur. The Tahasildar concerned will look into the question whether adequate steps are taken in that regard.
A.S. Naidu, J.
I agree.