1. Challenge in this application under Arts. 226 and 227 of the Constitution is to the orders (Annexures 1, 6 and 11) refusing to grant prospecting licence for graphite over an area of 46.07 hectares in village Tentulipodar in the district of Koraput by the State and Central Governments on an application made by the petitioner on 25-8-1973 before the Collector, Koraput, annexing the documents as required under the Mineral Concession Rules, 1960 (for short, the 'Rules'). As the State Government did not dispose of the application within the prescribed period of twelve months, the application was deemed to have been refused under Rule 11 (1) of the Rules and thereupon the petitioner made an application in revision before the Government of India (opposite party No. 1) under Rule 54 of the Rules in Nov., 1974. The opposite party No. 1 allowed the application, set aside the deemed order of refusal and directed the State Government (opposite party No 2) to consider and pass appropriate orders on merits. The opposite party No. 2, as per Annexure-1, rejected the application on the ground that the application was incomplete as it did not contain the map and the boundary description furnished by the petitioner was defective, the area applied for was objectionable from the revenue point of view as it covered communal land, burial ground and road and the petitioner was in default in payment of arrears of mining dues. Against this order of rejection, the petitioner preferred a revision in Feb., 1976 before the opposite party No. 1 setting out the grounds of revision as per Annexure-2 and reluting the reasons for which the opposite party No. 2 had rejected the application. The opposite party No. 1 rejected the revision made by the petitioner on the sole ground that she was in arrear of mining dues by observing that even though the amount in respect of which the petitioner was in arrear was small the opposite party No. 2 was justified in basing the rejection of further concessions on this ground, Annexure-6 is the copy of the revisional order passed by the opposite party No. 1 dated 24-8-1977. According to the petitioner, the mining dues clearance certificate (Annexure-7) dated Aug. 17, 1973 issued by the Director of Mines, Orissa, would show that the arrear of Rs. 105.15 paise was outstanding on July 1, 1973, i. e., much prior to the date of making the application OH Aug. 25, 1973. There was no mention therein that this arrear amount was outstanding on the date of the application. After receiving this certificate, the petitioner had applied to the Director of Mines for enquiry into the matter and issuance of a fresh certificate in her favour as the amount had already been recovered from her bills by the Minerals and Metals Trading Corporation of India Limited and had been paid to the Certificate Officer, Champua, against bank draft No. BF 811645 dated 3-7-1973, but the Director of Mines assured her that a fresh certificate was not required as there was no outstanding due against her as would be clear from the fact that the mining dues clearance certificate was issued in her favour and it would not have been so issued had there been any arrear due. The Director of Mines later had replied thus:
DIRECTORATE OF MINES,
No. XXXIII. H. 13/77-24025/Mines
The Director of Mines Orissa
Dr. Sarojini Pradhan,
At/P. O. Talatelenga Bazar,
Dated, Bhubaneswar the 7th/9th
Sub.: Issue of mining dues clearancecertificate,
In inviting a reference to your letter No. SP/C-23/388/77 dt. 30-9-77 OB the abovenoted subject, I am to say that a sum of Rs. 105.15 was outstanding against you on 1-7-73 which was paid in full vide T. C. No. 78 dt. 24-7-73. aS such, no dues was outstanding as on 17-8-73.
FOR DIRECTOR OF MINES.'
After this, the petitioner, as per Anne-xure-10, made an application to the opposite party No. 1 for rectification of the revisional order as the petitioner was not in arrears. The opposite party No. 1, as per Annexure-11, intimated that under Rule 55 of the Rules it had become functus officio in respect of the revision and it had no jurisdiction to re-vise it. It is thus that the petitioner has come to this Court in this writ application.
2. The stand of the opposite party No. 1 is that on the basis of the materials available on the record, the impugned revisional order has been passed and it was not aware of the truth or other-wise of the averment made by the petitioner that no dues were outstanding and of this, no information had been furnished by the petitioner before the final order in revision was passed. There was thus no error committed by the re-visional authority. It has also been stated in the return by the opposite party No. 1 that as the revisional authority had become functus officio no further action could be taken on the application made by the petitioner to review the revisional order. The opposite party No. 2, in its counter-affidavit, has not, in terms, stated that the petitioner was in arrear when the application was made but has asserted that basing on the clearance certificate granted by the Director of Mines on 17-8-1973 that there was arrear of royalty of Rs. 105.15 paise to be paid by the petitioner, the application for prospecting licence was rejected and the opposite party No. 1 confirmed this order. Reliance has been placed on Annexure-7, the certificate dated 17-8-1973 issued by the Director of Mines showing that on July 1, 1973, an arrear mining revenue amounting to Rs. 105.15 paise was outstanding against the petitioner.
3. As has rightly been submitted by Mr. R. K. Mohapatra, the learned counsel for the petitioner, no doubt, in Annexure-7, it had been shown that an amount of Rs. 105.15 paise was out-standing against the petitioner and as the averments of both the sides would indicate, this certificate had been attached to the application made by the petitioner, but this was the arrear as on 1-7-1973 and there was no material to establish that the petitioner was in arrear on 25-8-1973, the date on which she made the application for the prospecting licence. Mr. D. P. Mohapatra, the learned Additional Government Advocate, hag submitted that the impugned orders have been passed on the basis of the certificate furnished by the petitioner herself and it has been submitted by the learned Standing Counsel for the Central Government that on the basis of materials placed before the opposite party No. 1, it could not be said that the revisional order had been passed illegally or improperly. It would appear to us that no serious attempt had been made by the State Government to find out as to whether the petitioner was, in fact, in arrear and it may be stated at the cost of repetition that Annexure-7 would not indicate that on the date of making the application, the amount was due to be paid by the petitioner. No doubt, the opposite party No. 1 could not be in a position to know the actual state of affairs and it could base its revisional order on the materials placed before it and the comments and counter comments of both the sides, but as would be apparent from Annexure-9. extracted above, by 24-7-1973, no amount was outstanding against the petitioner. Thus when Annexure-7 was issued on 17-8-1973, the petitioner was not in arrear. This is the only ground on which the revisional authority has rejected the application in revision. In other words, the petitioner has failed on the basis of a ground which was non-existent when she made the application for prospecting licence. In our view, it would be just and reasonable that the impugned revisional order passed by the opposite party No. 1, as per Annexure-6, is set aside in the interests of justice with a direction to the opposite party No. 1 to consider the revision afresh and dispose it of in accordance with law.
4. In the course of hearing, Mr. Mohapatra for the petitioner has invited our attention to the principles laid down in AIR 1977 SC 984 Krishna Kumar Mediratta v. Phulchand Agarwala and has submitted that there being no provision in the Rules that a violation of Rule 9 (2) would make the application for prospecting licence void or invalid and the filing of the application being legally separable from the submission of the documents mentioned in Rule 9 (2), the application made by the petitioner could not be rejected. In the view we have taken, we do not feel ourselves called upon to examine this contention.
5. In the result, therefore, we would allow the writ application, quash An-nexure-6 ana direct the opposite party No. 1 to dispose of the revision in accordance with law. In the circumstances of the case, we would make no order as to costs.
R.C. Patnaik, J.
6. I agree.