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J.C. Rishi Vs. Union of India (Uoi) Through Secy. to Govt. of India Ministry of Mines and Metals and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 78 of 1967
Judge
Reported inAIR1968MP42
ActsMines and Minerals (Regulation and Development) Act, 1957 - Sections 30, 58, 59 and 60; Constitution of India - Article 226
AppellantJ.C. Rishi
RespondentUnion of India (Uoi) Through Secy. to Govt. of India Ministry of Mines and Metals and ors.
Appellant AdvocateR.S. Dabir and ;Ravindra Kumar Verma, Advs.
Respondent AdvocateA.P. Sen, Adv. General and ;K.K. Dube, Govt. Adv.
DispositionPetition allowed
Cases ReferredIn Gopikisan Agarwal v. District Judge
Excerpt:
- - the central government failed to appreciate this fact and acted on the amended rules without any justification. but from this provision it does not necessarily follow that if a person makes an application and the state government grants the application and executes a lease-deed in favour of that person, all this is rendered null and void only because the state government has failed to notify the land as contemplated under rule 58 and 59 of the mineral concession rules. it is also not necessary to decide the question as to whether the order of the state government having merged in that of the central government, the setting aside of the original order had no effect on the rights of the petitioner, as we have already held that the impugned order itself is bad......could not be made a party to the revision petition filed by vallabhadas sutaria, as no part of the land granted under the lease to the petitioner was involved in the application of vallabhadas sutaria and that the petitioner could not be impleaded as a party to the proceedings under rule 54 of the mineral concession rules. it was also urged that rules 58 and 59 were not attracted in the case. the central government, however, in exercise of alleged revisional powers under rule 55 of the mineral concession rules and of all other powers enabling in this behalf, set aside the order of the state government dated 7th january 1964 granting the lease to the petitioner and directed the state government to notify the area for re-grant under rule 59. the state government accordingly cancelled the.....
Judgment:

Bhave, J.

1. The petitioner had applied for grant of a mining lease over 30.32 acres of land in village Dhaurabhata for a period of 20 years for mining dolomite. The State Government, however, by order dated 7th January 1964 granted a lease over 27.67 acres and that too for a period of three years only. The petitioner accepted the lease under protest and preferred a revision petition under Section 54 of the Mineral Concession Rules, 1960, before the Central Government That revision was allowed and the State Government was directed to grant lease over 30.32 acres of land for a period of 10 years. Pursuant to the said order dated 23rd February 1965, a supplementary lease dated 31st January 1966 was executed on behalf of the State Government in favour of the petitioner.

2. The Central Government, however, as a result of certain proceedings initiated by Vallabhadas Sutaria (respondent No. 4) set aside the order of the State Government dated 7th January 1964 and directed the State Government to notify the area for re-grant. The communication of the Central Government is contained in Memo No, MV-1 (271)/65, dated 19th December 1966 (Annexure P-11). Pursuant to the order of the Central Government, the State Government has passed the order of cancellation of the lease vide Memo No. 273-8694/XII dated 19th January, 1967. The Collector has accordingly directed the petitioner by letter dated Sth February 1967 (Annexure P-12) to stop the mining operations and to vacate the area.

3. By this petition under Article 226 of the Constitution, the petitioner seeks a writ of certiorari for quashing the order of the Central Government dated 19th December 1966 by which the grant in favour of the petitioner has been set aside, as also for quashing the consequential orders passed by the State Government cancelling the lease and by the Collector directing the petitioner to suspend the mining operations and to vacate the area.

4. It appears that the fourth respondent, Vallabhdas Sutaria, had applied for grant of a mining lease over 61.25 acres of land in village Dhaurabhata; but his application was rejected by the State Government on 30th March 1962 on the ground that the area applied for was not available, as it was reserved for the purpose of the Bhilai Steel Project. A revision petition was preferred by Vallabhadas Sutaria before the Central Government was dismissed by its order dated 26th September 1964.

5. It further appears that when Vallabhadas Sutaria came to know that a lease was granted to the petitioner, he applied afresh on 8th September 1964 for grant of a mining lease: but this time he confined his application to 32.12 acres which area is adjoining the area granted to the petitioner. As the application was not disposed of by the State Government within nine months as required by Rule 24 of the Mineral Concession Rules, Vallabhdas Sutaria preferred a revision petition before the Central Government on 21st July 1965 (Annexure P-8). In that petition, Vallabhdas Sutaria had made a grievance that on previous occasion his application for grant of a mining lease was rejected by the State Government on the ground of non-availability of the area; and yet the petitioner was granted a lease in the same area for 27.32 acres on 7th January 1964 and that this action of the State Government amounted to favouritism and resulted in injustice to him.

6. The Central Government thereafter by Memo dated 19th September 1966 (Annexure P-7) invited the petitioner to make his comments on the points raised by Vallabhadas Sutaria in his revision petition and by the State Government in the comments sent on the said revision petition. That Memo also called upon the petitioner to explain why the lease granted in his favour be not cancelled, as it was granted without following the procedure laid down in Rules 58 and 59 of the Mineral Concession Rules. In the comments sent by the State Government, this time it was stated that Vallabhadas Sutaria was not granted the lease because the land was reserved for grazing purposes of the village,

7. The petitioner sent his comments in which it was urged that the petitioner could not be made a party to the revision petition filed by Vallabhadas Sutaria, as no part of the land granted under the lease to the petitioner was involved In the application of Vallabhadas Sutaria and that the petitioner could not be impleaded as a party to the proceedings under Rule 54 of the Mineral Concession Rules. It was also urged that Rules 58 and 59 were not attracted in the case. The Central Government, however, in exercise of alleged revisional powers under Rule 55 of the Mineral Concession Rules and of all other powers enabling in this behalf, set aside the order of the State Government dated 7th January 1964 granting the lease to the petitioner and directed the State Government to notify the area for re-grant under Rule 59. The State Government accordingly cancelled the lease and directed the petitioner to stop the mining operations and to vacate the demised area. Hence this petition.

8. Shri R. S. Dabir, learned counsel for the petitioner, raised the following grounds:

(1) That the Central Government having exercised its revisional power with respect to the grant made by the State Government in favour of the petitioner by order dated 7th January 1964 and having set aside that order by its own order dated 23rd February 1965, no further power of revision suo motu or otherwise remained in the Central Government and that the order of the Central Government setting aside the grant of the State Government is without jurisdiction.

(2) That the impugned order is nothing but an order passed on review. The Central Government has no power to review its own orders, as no powers of review have been conferred on the Central Government either under the Mines and Minerals (Regulation and Development) Act, 1957, or the Mineral Concession Rules, 1960; nor has the Central Government any inherent power to review its orders passed in exercise of revisional jurisdiction.

(3) That the order passed by the State Government was superseded by the Central Government and that order merged in the order of the Central Government. The order of the State Government could not, therefore, be set aside, as no such order remained in existence.

(4) That Rule 58 and 59 of the Mineral Concession Rules, 1960, as they stood on the date the petitioner had filed the application for grant of lease, did not require that the land in question should have been notified. The Central Government failed to appreciate this fact and acted on the amended rules without any justification.

(5) That the petitioner could not be made a party to the revision petition filed by Vallabhadas Sutaria, as the petitioner was, in no way, interested in the land applied for by Vallabha Das Sutaria. and that the Central Government acted without jurisdiction and without any Justification whatsoever in embarking on the enquiry as to whether the lease was properly granted to the petitioner or not.

(6) That, in pursuance of the grant made by the State Government and as modified by the Central Government, lease-deed was executed in favour of the petitioner. The demise of the land so made could not be cancelled by the Central Government.

9. Shri Sen, learned Advocate General, appearing for the respondents 1 and 2, stated that Rule 58 and 59 of the Mineral Concession Rules, 1960, were attracted in this case. Non-observance of the rules rendered the grant made by the State Government and as modified by the Central Government, null and void. Such a grant need not be set aside. He urged that the Central Government had suo motu powers of revision under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957, and even if Rule 55 of the Mineral Concession Rules, 1960, in terms, did not apply the substantive provision under Section 30 confers such power on the Central Government and was available to it. The Advocate General controverted other grounds also.

10. The fact that the Central Government had once exercised revisional powers in the matter of grant of mining lease to the petitioner cannot be disputed. It cannot also be disputed that Vallabhdas Sutaria in his application of 8th September 1964 did not ask for any land over which the petitioner was granted the mining lease and the interests of Vallabhadas Sutaria and the petitioner were not in conflict. The only points that need be considered are: whether the Central Government could exercise the revisional powers once more; and if not, whether the Central Government had any power of review; and whether the grant in favour of the petitioner could be treated as a nullity and altogether ignored

11. Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957, confers on the Central Government the power to revise an order passed by the State Government of its own motion or on an application made within the prescribed time by an aggrieved party. Rules 54 and 55 of the Mineral Concession Rules, 1960. only prescribed for filing of a revision petition by the aggrieved party and the disposal thereof. These rules do not touch the authority of the Central Government to revise an order suo motu. Even so, the revisional power conferred on the Central Government under Section 30, whether exercised suo motu or on the application of an aggrieved party, can be exercised, in our view, only once. The provisions of Section 30 do not contemplate the exercise of the power once when it is invoked by an aggrieved party and at a second time suo motu, The action of the Central Government in revising the order already passed is thus without jurisdiction. Apart from Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957, and Rules 54 and 55 of the Mineral Concession Rules, 1960, no other power has been conferred on the Central Government to modify its own orders. In this particular case, the order passed by the State Government was modified by the Central Government which resulted in grant of a lease for a larger area and for a larger period. Yet, the order of the Central Government purports to can-cei the order of the State Government dated 7th January 1964 which had already merged in the order of the Central Government. In terms, therefore, the impugned order passed by the Central Government is not enforceable.

12. The impugned order has been passed specifically in exercise of powers under Rule 55 of the Mineral Concession Rules. The respondents cannot, therefore, be heard to say that any other power was exercised by the Central Government. Learned Advocate General, however, referred to the order wherein it has been stated that 'all other powers enabling in this behalf' were also invoked for setting aside the order of the State Government. We have already pointed out that there is nothing in the Act or the Rules conferring any other power enabling the Central Government to cancel the order of the State Government apart from the revisional powers conferred under Section 30 and Rules 54 and 55.

13. The Advocate General, however, urged that when the Central Government purported to set aside the order of the State Government dated 7th January 1964 what it did was that it set aside the grant in favour of the petitioner contained in the order of the State Government as modified by the Central Government. Even if it is assumed that this is the effect of the order, it will have further to be assumed that the order by the Central Government was quashed after reviewing its own order passed on 23rd February 1965. There is no provision in the Act or the Rules conferring the power of review on the Central Government. That when no such power has been specifically conferred, the authority cannot review its own order is settled by the decisions of the Supreme Court: See Harbhajan Singh v. Karam Singh, AIR 1966 SC 641 and Chunibhai v. Narayanrao. AIR 1965 SC 1457. In a Full Bench decision of this Court in Thakur Himmatsingh v. Board of Revenue 1966 MPLJ 170 : (AIR 1966 Madh Pra 43) (FB) it has been held that there is no inherent power of review in an authority, whether acting judicially or quasi-judicial-ly; that power is required to be conferred specifically under the statute. This is not the case here. In Narsinghdas Jankidas v. State of M. P. 1965 MPLJ 79 : (AIR 1965 Madh Pra 159) a Division Bench of this Court held that the Mineral Concession Rules do not give any power to the Central Government to review either suo motu or on the application of any party an order passed by it in a revision application under Rule 54. The inevitable conclusion, therefore, is that the Central Government had no authority to review the order passed by it on 23rd February 1965 whereunder a lease for 30.32 acres of land was granted to the petitioner for a period of 10 years.

14. Rules 58 and 59 of the Mineral Concession Rules, 1960 (before their amendment), relied on by the Advocate General, read as under:

'58. Availability of areas for regrant to be notified. No area which was previously held or which is being held under a prospecting licence or a mining lease or in respect of which an order had been made for the grant thereof but the applicant has died before the execution of a licence or lease, as the case may be, or in respect of which the order granting licence or lease has been revoked under Sub-rule (1) of Rule 15 or Sub-rule (1) of Rule 31, shall be available for grant unless--

(a) an entry to the effect is made in the register referred to in Sub-rule (2) of Rule 21 or Sub-rule (2) of Rule 40, as the case may be, in ink; and

(b) the date from which the area shall be available for grant is notified in the Official Gazette at least thirty days in advance.

59. Availability of certain areas for grant to be notified .-- In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a mining lease on the ground that the land should be reserved for any purpose other than prospecting or mining for minerals, the State Government shall, as soon as such land becomes again available for the grant of a prospecting licence or mining lease, grant the licence or lease after following the procedure laid down in Rule 58'.

The words 'other than prospecting or mining for minerals' were omitted by subsequent amendment which came into operation after the application was filed by the petitioner. Shri Dabir, learned counsel for the petitioner, urged that Rule 59, as it stood when the petitioner had made the application, applied to only those cases where a lease was refused to any person on the ground that the land was reserved for any purpose other than 'prospecting or mining for minerals' When the State Government refused to grant a mining lease to Vallabhadas Sutaria on the ground that the land was reserved for the Bhilai Steel Project, the reservation was not for any purpose other than prospecting or mining for minerals. The Bhilai Steel Project for the purposes of its enterprise necessarily requires to perform mining operations and when certain land is reserved for the Bhilai Steel Project, the presumption is that it is reserved for mining purposes. The reservation, therefore, did not come within Rule 59, as it stood then. The Advocate General, on the other hand, urged that the business of Bhilai Steel Project is not that of mining; the business is of producing iron; and for that purpose it may either purchase the ore from outside sources or it may itself mine the ore from the land and utilize it in the factory established by it. When the land is thus reserved for the Bhilai Steel Project, it cannot be said that the land is reserved for mining of minerals as such. We find it difficult to accept the contention of the Advocate General. It may be true that the Bhilai Steel Project is ultimately interested in producing iron: but when it also undertakes the activity of mining for minerals and if any land is reserved for that purpose, then certainly the reservation is for mining purposes. This purpose is specifically excluded from the purposes mentioned in Rule 59. Rule 59, therefore, did not require that the State Government should have followed the procedure prescribed under Rule 58 with respect to the land reserved for mining purposes of the Bhilai Steel Project. It is plain that unless Rule 59 is attracted, Rule 58 shall not come into operation, The purpose of Rule 58 and 59 is to give notice to the people in general that the land, which was already covered under a mining lease or a prospecting licence, or was reserved for any other purpose has become available for the grant of a mining lease. The provision of 'notice is made because it is almost impossible for a person to know the details as to when the lease expires or when it has expired prematurely or when the land, which was reserved, has become available. If this procedure is followed, everyone gets a fair opportunity of applying for grant of a lease; no one can take any surreptitious advantage of his special knowledge that the land has become available. But from this provision it does not necessarily follow that if a person makes an application and the State Government grants the application and executes a lease-deed in favour of that person, all this is rendered null and void only because the State Government has failed to notify the land as contemplated under Rule 58 and 59 of the Mineral Concession Rules. The Montreal Street Rly. Co. v. Normandin, AIR 1917 PC 142 at p. 144 their Lordships of the Privy Council held:

''When the provisions of a statute re-late to the performance of a public duty and the cast is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only',

Another test laid down in various decisions is that the requirement is held to be mandatory if the statute provides for the consequence of nullification of the action taken in violation of those provisions. We have already pointed out that the purpose of Rule 58 and 59 is to make it known to the people that certain land has become available. It is not provided anywhere that any lease of the land not so notified shall become null and void. Rule 60 no doubt provides that an application for the grant of a prospecting licence or a mining lease in respect of an area in which no notification has been issued under Rule 58 or Rule 59 shall be deemed to be premature and shall not be entertained and the fee, if any, paid in respect of any such application shall be refunded. The reason is that if the application is kept pending, the applicant may ask for grant of the mining lease on the ground that he being the first applicant had a preference over others who had no notice of the availability of the land. We find it difficult to interpret this rule to mean that if the lease in respect of such land is granted, it shall be rendered null and void. In any case, we have already held that under the rule, as it stood when the application was made by the petitioner, there was no necessity of notifying the said land as contemplated by Rule 59 and that the grant made in favour of the petitioner was valid and could not be set aside in the manner it was set aside by the Central Government.

15. The Advocate General had also raised a preliminary ground that inasmuch as the question of jurisdiction of the Central Government was not raised before that authority, the petitioner could not be allowed to raise that question, for the first time, in this petition. In Pioneer Traders v. Chief Controller of Imports and Exports, AIR 1963 SC 734 at p. 745 his Lordship Justice Das Gupta observed:

'Where any authority, whether judicial or quasi-judicial, has in law no jurisdiction to make an order, the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothe it with jurisdiction.'

In Gopikisan Agarwal v. District Judge, Bhandara, 1966 Mah LJ 321 the Bombay High Court, after reviewing the decisions of the Supreme Court and other High Courts, held that the point of jurisdiction can be raised, for the first time, in a writ petition even if the party had not raised it before the tribunal, the order of which is being challenged. We respectfully agree with that view and hold that the petitioner is entitled to raise the question of jurisdiction before us.

16. In the view we have taken, it is not necessary to decide the further question as to whether the grant which has resulted in the demise of the land could be revoked by the Central Government. It is also not necessary to decide the question as to whether the order of the State Government having merged in that of the Central Government, the setting aside of the original order had no effect on the rights of the petitioner, as we have already held that the impugned order itself is bad.

17. For the aforesaid reasons, theorder of the Central Government dated 19thDecember 1966 is quashed as also the orderof the State Government dated 19th January 1967 cancelling the lease and the orderof the Collector directing the petitioner tostop the mining operations and to vacate thearea are quashed. The petition is accordinglyallowed. The petitioner shall get his costsfrom the respondents 1 and 2. Hearing feeRs. 200. The outstanding amount of the security deposit shall be refunded to thepetitioner.


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