Y. K. Sabharwal, J.
1. The writ petitioner Avtar Singh was granted a lease in respect of a piece of land in the State of Haryana for extraction of Silica and, a major mineral, for a period of 10 years effective from 8th July 1981 to 7th July 1991. He entered into a lease agreement with State of Haryana under the provisions of Mineral Concession Rules 1960 (hereinafter referred as 'Rules'). The same area which was leased to Avtar Singh was also coextensively leased in favor of R. L. Sharma for extraction of ordinary sand, a 'minor mineral'. The minor mineral is to be extracted from the surface and the major mineral underneath the surface. The lease with Avtar Singh stipulated that the lessee of minor mineral will work the mine first and Avtar Singh shall start work after the lessee of minor mineral has finished his operations.
2. Avtar Singh was issued a show cause notice dated 10th March 1983 requiring him to remedy the breaches mentioned in the show cause notice within 60 days from the receipt of the notice and report compliance to the Slate Government. The said show cause notice was issued under Rule 27(5) read with clause 2 of Part IX of the lease deed. This notice also stipulated that in case the lessee fails to remedy the breaches within the stipulated period the Stale Government will determine the lease and forfeit the whole of the security deposited by the lessee. According to this notice Avtar Singh had been advised by Director of Industries, Haryana by Memo dated 10th February 1982 and again by Memo dated 27th May 1982 to install boundary pillars in the leased area and submit monthly production reports regularly and to ensure that payments slips were issued from the proper books of accounts maintained in Lessee's mining office but the lessee had failed to do so; a joint inspection of the area under the lease was carried out by the officers of the Directorate General of Mines safety and the General Manager DC, Faridabad, Government of Haryana on 22nd March 1982 and it had been reported that the depth of the pits was 30 to 36 meters; the sides were vertical and there were dangerous over handing; no attempt had been made to form benches as required under Regulation 6 of Metalliferous Mines Regulations 1961. It was stated that those persons were engaged under dangerous conditions; qualified Manager and other supervisory staff was not appointed as required under Regulations 34 and 116; helmets and footwears were not being maintained and that the arrangements for supply of drinking water and first aid equipment were not made and the Central Government had already issued an order under Section 23(3) of the Mines Act, 1962 in this regard. The notice further stated that lessee had neither erected the boundary pillars nor started production nor submitted production dispatch returns nor maniple records and also did not comply with the provisions of the Act and the Rules and Regulations made there under and had committed breach of the conditions contained in Clauses 2, 3,7 and 10 of Part VII of the lease deed. The aforesaid breaches were required to be remedied by notice dated 10th March 1983.
3. Reply dated 9th May 1983 to the show cause notice is stated to have been sent by Avtar Singh denying.that he had violated any condition of the lease deed and, inter alia, stating that whatever was required to be done by him as a lessee was done; proper accounts were being maintained, there was no joint inspection of the area and he had not been informed about it; there were no dangerous pits and though the boundary pillar had been erected but the local villagers and other miscreants had demolished the same. However, it had been repaired.
4. The State Government did not accept the Explanationn of Avtar Singh and by order dated 27th April 1984 the lease was determined in exercise of power under Rule 27(5) and the security amount forfeited. Avtar Singh challenged the determination of the lease by filing a revision petition before the Central Government. One of the grounds taken in the revision petition was that M/s. R. L. Sharma & Co. had indulged in unscientific method and dug mines up to the detail of 100 feet. It was reiterated that no joint inspection as mentioned in the show cause notice was conducted.
5. The revision petition was dismissed on 24th November 1984.
6. Avtar Singh took the matter to Supreme Court by filing the Special Leave Petition (Civil) No. 1017/85 under Article 136 of the Constitution of India. The said SLP was, however, dismissed on 19th February 1985.
7. A review petition was then filed by Avtar Singh which was dismissed as not maintainable by the Central Government.
8. After the dismissal of review petition C.W. No. 1485/85 was filed in this Court by Avtar Singh which was dismissed as withdrawn with liberty to him to file a fresh petition. Thereafter, the writ petition (C.W.P. No. 2566/85) out of which the present appeals have arisen was filed by Avtar Singh impleading Union of India and State of Haryana as respondents.
9. Sahi Ram made an application for being imp leaded as a party in C.W.P. No. 2566/85, inter alia, pleading that after determination of the mining lease of Avtar Singh he had applied for grant of mining lease of the said area and the same was granted to him on 31 st October 1985 for 3 years and possession had been handed over to him on 11th November 1985 by State of Haryana. The lease of Sahi Ram had also been terminated on 14th July 1986 under Section 4A of the Act but possession was restored to him by the State Government in view of the directions issued by this Court on 17th August 1988 in C.W.P. No. 420/87 and since then Sahi Ram had been conducting the operational work of the mining lease. From the subsequent facts it appears that presently the lease in favor of Sahi Ram is valid till 28th June 2002. Sahi Ram was imp leaded as respondent in the writ petition.
10. By the impugned judgment dated 24th November 1992 the order of determination of lease as also the order of the Central Government rejecting the revision petition and order passed on the review petition of Avtar Singh have all been set aside and Union of India and State Government have been directed to restore possession of the lease to Avtar Singh with further direction that the period of unlawful interruption shall be excluded in computing 10 years term of lease granted to Avtar Singh.
11. Sahi Ram and State of Haryana in these two appeals have challenged the correctness of the judgment of the learned single Judge. In terms of the orders passed in these appeals, status quo has been ordered to be maintained. We have heard learned counsel for the parties and have perused the relevant record.
12. The order of cancellation of lease has been set aside by learned single Judge holding that the same has been passed in violation of the principles of natural justice. The learned single Judge has held that right of personal hearing has been denied to Avtar Singh as also an opportunity to explain the grounds mentioned in paras 6 and 7 of the termination order dated 27th April 1984.
13. The order of cancellation of lease had been admittedly passed under Rule 27(5), which reads as under :--
'27(5): If the lessee makes any default in the payment of royalty as required under Section 9 or payment of dead rent as required under Section 9-A or commits a breach of any of the conditions specified in Sub rules (1), (2) and (3), except the condition referred to in Clause (f) of Sub rule (1), the State Government shall give notice to the lessee requiring him to pay the royalty or dead rent or remedy the breach, as the case may be, within sixty days from the date of the receipt of the notice and if the royalty or dead rent is not paid or the breach is not remedied within the said period, the State Government may, without prejudice to any other proceedings that may be taken against him, determine the lease and forfeit the whole or part of the security deposit.'
14. It is correct that there is no statutory requirement of granting opportunity of personal hearing on the language of aforesaid Rule. However, for the proposition that on the facts and circumstances of the case grant of personal hearing is necessary and the same having not been granted principles of natural justice and fair play have been violated thus invalidating the termination of the lease, reliance has been placed on the decision of Supreme Court in State of Haryana v. Ram Krishan, : [1988]3SCR1015 , Assam Sillimanite Ltd. v. Union of India, : [1990]1SCR983 and the decision of the Division Bench of this Court in Dharamvir v. Union of India, : AIR1989Delhi227 and various other decisions. In these cases the question involved was regarding the premature termination of the lease under Section 4A of the Act. It further appears that the Act was amended in 1986 and Subsection (3) to Section 4A was inserted thereby incorporating statutory requirement of grant of a reasonable opportunity of being heard before making an order for premature termination of a prospective license or mining lease. A mining lease can be terminated prematurely as provided in Section 4A of the Act. The determination of the mining lease in the aforesaid three cases was prior to the amendment of Section 4A and insertion of Subsection (3) in Section 4A. The provisions of Section 4A were discussed at great length in the case of Ram Krishan and it was held that there was no suggestion in the section to deny the right to be heard to the affected persons and that the section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. It was further held that not to do so would be vocative of principles of natural justice and, thereforee, the lessee was entitled to be heard before decision to prematurely terminate his lease was taken and since such a hearing had not been afforded the High Court was right in quashing the order passed under Section 4A. In Assam Sillimanite case the Supreme Court observed that the insertion of Subsection (3) in Section 4A clearly reflects a statutory intention that.an opportunity of hearing must be given before the order of determination is passed presumably as such an order vitally affects the rights of a lessee. The decision in Ram Krishan's case was followed in Assam Sillimanite's case. This Court in Dharamvir's case, in view of the Supreme Court decision in Ram Krishan'scase, held that the question whether grant of opportunity of hearing was necessary was no longer resintegra and that such an opportunity was necessary to be granted.
15. It has been rightly pointed out that in the aforesaid decisions the orders of premature determination of leases which came up for consideration were passed in exercise of powers under Section 4A of the Act and in the present case the impugned action has not been taken under Section 4A but has been taken under Rule 27(5). Mr. Kathuria submits that since in none of the aforesaid cases the determination of the lease was in exercise of power under Rule 27(5) these decisions were not only distinguishable but, in fact, had no applicability for deciding the legality of action taken under Rule 27(5).
16. We are unable to accept the contention of Mr. Kathuria. If for premature determination of lease under Section 4A it is necessary to grant an opportunity of personal hearing to the lessee before passing an order, there are strong reasons for grant of such an opportunity before taking action for determination of lease in exercise of power under Rule 27(5). The Full Bench decision of Punjab High Court in the case of Bhikhan Bobla v. The Punjab State, has no applicability to the facts and circumstances of the present case. Applying the ratio of Supreme Court's decision in Ram Krishan's case, it has to be held that grant of an opportunity of hearing before determination of lease under Rule 27(5) is necessary. The decision in the case of M/s. Shrikrishnadas Tikara v. State of M.P., : AIR1977SC1691 has also no applicability to the present case. The observations made in para 8 of the cited decision relied upon by Mr. Kathuria to the effect that the failure to personally hear the petitioner does not amount to contravention of the canone of natural justice, have been taken out of context. In fact, the said decision does not advance the case of the appellant on the question of grant of an opportunity of personal hearing. If at all the said decision supports the view taken by the learned single Judge regarding the necessity to grant an opportunity of oral hearing. The facts of the cited decision show that in response to first show cause notice issued under Rule 27(5) the lessee had been heard before an order dated 21st May 1997 was made by the Government and thereby the contract was cancelled and security deposit forfeited. The Supreme Court held that the lessee having been heard natural justice had been complie,d with. The facts further show that being not Collector issued a second notice to the lease dated 22nd May 1974 wherein a personal hearing was offered but the lessee had not been heard. It was in respect of this second notice that observation was made by the Supreme Court that failure to hear the lessee does not contravene the cannone of natural justice and that it was well established that the principles of natural justice cannot be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. On the facts of the present case, in our view, the learned single Judge rightly came to the conclusion that there was violation of principles of natural justice for want of opportunity to Avtar Singh to be heard. Such an opportunity was all the more necessary, as held by learned single Judge, when Avtar Singh was seriously disputing that there was any joint inspection and the stakes were high and facts were in controversy.
17. In view of the aforesaid conclusion on the question of denial of an opportunity to Avtar Singh to be heard in the matter, it is not necessary to go into the question whether Avtar Singh was supplied or not the documents which were the basis of termination of lease in terms of Paras 6 and 7 of the order of determination.
18. Regarding the effect of dismissal of Special Leave Petition No. 1017/85 filed by Avtar Singh against the revisional order dated 24th November 1984, it has to be kept in view that the Supreme Court while exercising power under Article 136 of the Constitution of India, had dismissed the SLP on 19th February 1985 by a non speaking order. The order was 'Special Leave Petition is dismissed'. Thereafter Avtar Singh filed review petition and eventually the writ petition out of which these appeals have arisen. The contention urged on behalf of the appellant is that special leave petition having been dismissed, the revisional order has become final and is binding on the parties on the principles of resjudicata and it could not have been challenged by filing the writ petition which was incompetent and not maintainable. On detailed examination of various decisions of the Supreme Court, the objection about maintainability of the writ petition on this score was rejected by learned single Judge. We do not find any infirmity in the approach of learned single Judge. There can be various reasons for dismissal of a special leave petition under Article 136. The question stands squarely settled by Supreme Court in the case of Indian Oil Corporation Ltd. v. State of Bihar, AIR 1986 SC 1780. Reversing the decision of the Division Bench of the Patna High Court on the question of maintainability of the writ petition on the ground of dismissal of the special leave petition by a non speaking order, the Supreme Court observed that (at page 1781):--
'We are clearly of opinion that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground. As observed by this Court in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust : (1978)IILLJ161SC , the effect of a non speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, ot'course, be reopened in a subsequent writ proceeding before the High Court. But neither on the principle of rest judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding, namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of rest judicata or constructive rest judicata to such an extent so as to found it on mere guesswork.
This enunciation of the legal position has been reiterated by this Court in Ahmedabad . v. Workmen, : (1981)ILLJ489SC . The principles laid down in the two decisions cited above fully govern the present case.
It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in liming by a non speaking order does not thereforee, justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court to grant special leave in cases where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non speaking order especially in view of the rulings already given by this Court in the two decisions afore cited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition.
19. In view of the aforesaid, the dismissal by Supreme Court of special leave petition by a non speaking order could not operate as a bar against the respondent in filing the writ petition in this Court under Article 226 of the Constitution. Learned counsel for the State of Haryana, however, relies upon decision of Supreme Court in State of Maharashtra v. Prabhakar Bhikaji Ingle, : (1996)IILLJ430SC . In the decision relied upon, Justice K. Ramaswamy speaking for the Supreme Court observed that once the Supreme Court has confirmed the order passed by the Tribunal, that becomes final and the order of the Tribunal merges with the order of the Supreme Court. The said case, however, was not concerned with the question of maintainability of a petition under Article 226 on a special leave petition having been earlier dismissed against the order passed by the authorities. The question in that case was about the power of the Administrative Tribunal to review its order under Order 47, Rule 1, CPC or under any other appropriate provision when that order had been confirmed by the Supreme Court by refusing to grant special leave. Under these circumstances the Supreme Court held that 'the exercise of the review power is deleterious to the judicial discipline. Once this Court has confirmed the order passed by the Tribunal, that becomes final. thereforee, the Tribunal cannot have any power to review the previous order which stands merged with the order passed by this Court. In our view, these observations have no relevance on the question of exercise of the power by this Court under Article 226. Apart from the decision in the case of Indian Oil Corporation AIR 1986 SC 1780 (supra), the point in issue also stands concluded by a Constitution Bench decision of the Apex Court in the case of Daryao v. State of U.P., : [1962]1SCR574 . Justice Gajendragadkar speaking for Supreme Court held (at page 1465) :--
'We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in liming and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in liming without passing a speaking order then such dismissal cannot be treated as creating a bar of rest judicata. It is true that, prima facie, dismissal in liming even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of rest judicata against a similar petition filed under Article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of rest judicata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us.'
20. In view of the aforesaid discussion, the contention that the writ petition filed by Avtar Singh is not maintainable cannot be accepted.
21. This takes us to the last point urged by Sh. Kathuria. According to learned counsel his client Sahi Ram had resumed mining in 1991 and is operating the mine vide lease deed dated 15th January 1994 for a period of 10 years with effect from 29th June 1991 and the said period would expire on 28th June 2002. The contention of learned counsel is that assuming without admitting that the action of the State in determination of the lease of Avtar Singh was illegal, the appellant should not be made to suffer particularly when he has made huge investments and his lease is valid till 2002 and, thereforee, it is a fit case for award of damages only in favor of Avtar Singh against the Slate Government and to avoid delay, the amount of damages can be determined in arbitration proceedings which this Court may direct to be held expeditiously. In support of the contention, reliance has been placed by learned counsel on the decision of Apex Court in the case of Sillimanite. : [1990]1SCR983 (supra) wherein the matter of quantification of damages was referred to arbitration of an independent person. The decision relied upon has no applicability to the facts and circumstances of the present case for more than one reason. Firstly, that decision was based on concession of both parties unlike the present case. Secondly, the lease in favor of appellant was granted and renewed during pendency of these proceedings in Courts and there were orders of restrain. Thirdly, renewal deed contains a clause that it is subject to the outcome of the LPA. Fourthly, though the order to maintain status quo was passed in this appeal on 8th December, 1992, lease deed for renewal was executed in 1994 effective from 29th June, 1991. There are no special equities in favor of the appellant which should result in denial of grant of lease in favor of Avtar Singh for unexpired period of about six years despite determination of lease of Avtar Singh being held to be illegal by learned single Judge and also in this appeal.
22. For the aforesaid reasons, we find no merit in these appeals which are, accordingly, dismissed. Parties are, however, left to bear their own costs.