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Ravjibhai Jivabhai Patel Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 1836 of 1978
Judge
Reported inAIR1981Guj57; (1981)0GLR307
ActsMines and Minerals (Regulation and Development) Act, 1957 - Sections 11(2), 11(4) and 30; Constitution of India - Article 14
AppellantRavjibhai Jivabhai Patel
RespondentState of Gujarat and ors.
Appellant Advocate J.C. Patel, Adv.
Respondent Advocate J.R. Nanavati, Asstt. Government Pleader, i/b., Ambubhai, Adv.,; Divanji, Addl. Govt. Pleader,;
Excerpt:
constitution - constitutional validity - section 11 (4) of mines and minerals (regulation and development) act, 1957 and article 14 of constitution of india - constitutional validity of section 11 (4) challenged - allegedly impugned section confers arbitrary and unguided power on state government to override priority of applicant whose application for mining lease is received earlier in point of time than party in whose favour order for grant of mining lease is made - power conferred been circumscribed by two checks - requirement to give special reasons and requirement to obtain previous approval of central government for exercise of said power - reasons given by state government must be sound and logical and must stand judicial scrutiny - sufficient safeguards provided by parliament.....a.m. ahmadi, j.1. by this writ petition brought under article 226 of the constitution, the petitioner, a businessman from baroda, challenges the constitutional validity of section 11(4) of the mines and minerals (regulation and development) act, 1957 (hereinafter called 'the act') and the order of the state government dated 29th august 1978, annexure 'c', whereby the state government in exercise of powers conferred by section 10 of the act sanctioned the grant of a mining lease for soapstone for a period of twenty years in respect of the area situate in village nathpuri, taluka jambughoda, district panchamahals, to respondent no. 3, messrs paushak limited, a company incorporated under the companies act and having its registered office at baroda. the facts giving rise to the petition,.....
Judgment:

A.M. Ahmadi, J.

1. By this writ petition brought under Article 226 of the Constitution, the petitioner, a businessman from Baroda, challenges the constitutional validity of Section 11(4) of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter called 'the Act') and the order of the State Government dated 29th August 1978, Annexure 'C', whereby the State Government in exercise of powers conferred by Section 10 of the Act sanctioned the grant of a mining lease for soapstone for a period of twenty years in respect of the area situate in village Nathpuri, Taluka Jambughoda, District Panchamahals, to respondent No. 3, Messrs Paushak Limited, a company incorporated under the Companies Act and having its registered office at Baroda. The facts giving rise to the petition, briefly stated, are as under.

2. The petitioner made an application in the prescribed form on 1st October 1974, for a mining lease for soap-stone In respect of 303.03 acres of Nathpuri and Bhildungra villages of District Panchmahals under Rule 22 of the Mineral Concession Rules (hereinafter called 'the Rules') framed in exercise of powers conferred by Section 13 of the Act. The respondent No. 3 also made a similar application in respect of the same area for a mining lease on 3rd October 1974, that is, two days after the petitioner's application, Along with their applications neither the petitioner nor respondent No, 3, produced the letters of consent of the occupants. However, the petitioner succeeded in obtaining the consent of some of the occupants on 15th December 1974. The respondent No, 3, on the other hand, secured the consent of all the occupants by 19th December, 1974, and forwarded the same to the State Government, The application of the petitioner for the grant of a mining 'lease was, however, rejected an 6th October 1975. Similarly, the application of respondent No. 3 stood rejected on the expiry of the period of twelve months by virtue of Rule 24 of the Rules. In the meantime, however, the State Government had moved the Central Government under Section 11(4) of the Act for approval to grant a mining lease to respondent No. 3 whose application was received later, in preference to the petitioner whose application was earlier in point of time. The Central Government gave its approval on 20th January 1976, but by that time, as stated above, the application of respondent No. 3 stood rejected by lapse of time. It was, therefore, not possible for the State Government to grant at mining lease to respondent No. 3 in preference to the petitioner's application, notwithstanding the previous approval granted by the Central Government.

3. After the petitioner's application was rejected on 6th October 1975, the petitioner filed a Revision Application to the Central Government under Section 30 read with Rule 54 on 26th November 1975, which was allowed on 2nd September 1977. The Central Government directed the State Govt. to reconsider the application of the petitioner on merits and dispose it of within a period of hundred days. The State Government failed to dispose of the application of the petitioner within the stipulated period and hence the petitioner was constrained to file a Second Revision Application to the Central Government on 19th January, 1978. That Revision Application was allowed on 9th February, 1978, and the same direction as was given on the first occasion was reiterated in the final order passed by the Central Government. The State Government, however, once again failed to consider the petitioner's application on merits and dispose it of within the stipulated period of hundred days whereupon the petitioner moved the Central Government by a third Revision Application on 29th June, 1978. The Central Government allowed this Revision Application by its order dated 21st August, 1978, and gave a direction to the State Government to dispose of the petitioner's application on merits within a period of two hundred days.

4. On the other hand, respondent No. 3, felt aggrieved by the rejection of his application on account of lapse of time and filed a Revision Application to the Central Government challenging the rejection on 30th January 1976. That application was, however, rejected by the Central Government on 25th February 1976, on the ground that it was barred by limitation. Thereupon, respondent No. 3 made a fresh application for a mining lease on 8th March, 1976, in respect of the Nathpuri area admeasuring about 154 acres. That application was not decided for a period of twelve months and hence it stood rejected by the thrust of Rule 24 of the Rules. Respondent No. 3 thereupon filed a Revision Application to the Central Government which was allowed on 23rd April 1977. The Central Government directed the State Government to dispose of the application on merits within hundred days but that was not done and the time expired on 3rd August 1977. It is not disputed that respondent No. 3 did not file any further Revision Application to the Central Government complaining about the inaction on the part of the State Government to dispose of its application on merits in pursuance of the order passed by the Central Government in the Revision Application. On the other hand, it appears, that respondent No. 3 wrote a letter to the Minister for Industries, Mines and Power Department, Government of Gujarat, Shri Makrand Desai, on 17th December, 1977 On the basis of that letter received by the Minister from respondent No. 3, the P. A. to the Minister wrote a letter dated 11th April 1978, to respondent No. 3, copy whereof was forwarded to the petitioner, fixing the date of the meeting on 18th April 1978. It is the allegation of the petitioner that in course of the discussion at the said meeting the Minister, respondent No. 2 herein, informed him that the State Government was inclined to grant the mining lease to respondent No. 3 in preference to the prior application of the petitioner. Thereafter respondent No. 3 gave a fresh application on 4th January, 1978, (sic) for the grant of a mining lease in respect of 100 acres of land situate in village Nathpuri, District Panchmahals. , The State Government thereafter wrote a letter dated 13th June 1978, to the Central Government for its approval under sub-section (4) of Section 11 of the Act for the grant of a mining lease to respondent No. 3 whose application was received later in preference to the peti ioner whose application was earlier in point of time. The Central Government accorded approval by its letter dated 5th August, 1978, and therafter the State Government passed the impugned order, Annexure 'C', on 28th August 1978.

5. Mr. Patel, the learned advocate for the petitioner, made the following submissions at the hearing of this petition:-

(1) Section 11(4) of the Act is ultra vires Article 14 of the Constitution inasmuch as it confers arbitrary and unguided power on the State Government to override the priority of an applicant whose application for mining lease is received earlier in point of time vis-a-vis the party in whose favour the order for the grant of mining lease is made.

(2) The impugned order is illegal and smacks of abuse of power by the State Government in favour of respondent No. 3 who was granted priority without any just and valid reason by-passing the rightful claim of the petitioner.

(3) The impugned order overriding the priority of the petitioner is void as being violative of the rule of natural justice, in that, the petitioner was not given a hearing before the said order was passed.

(4) The impugned order was mala fide passed overlooking the petitioner's claim as the concerned Minister, respondent No. 2 herein, was biased in favour of respondent No. 3 and was out to help it as those in management of the said Company were his personal friends, and

(5) There is total non-application of mind, in that, the Central Government gave its approval under Section 11(4) of the Act to override the priority of the petitioner even though the petitioner's Revision Application was pending before it.

We will answer these contentions seriatim.

6. The Act was enacted to provide for the regulation of mines and the development of minerals under the control of the Union. The dictionary of the Act is contained in Section 3 and Clause (c) thereof defines a 'mining lease' as a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose. Section 4 lays down that no person shall undertake any mining operations in any area, except under and in accordance with the terms and conditions of a mining lease granted under the Act and the Rules made thereunder. It further provides that no mining lease shall be granted otherwise than in accordance with the provisions of the Act and the Rules made thereunder. Section 10 next provides that an application for a mining lease in respect of any land in which the minerals vest in the Government shall be made to the State Government concerned in the prescribed form and shall be accompanied by the prescribed fee. Where such an application is received it is made obligatory on the concerned authorities to send to the applicant an acknowledgment of its receipt within the prescribed time and in the prescribed form. It is next provided that on receipt of an application under the said Section, the State Government may, having regard to the provisions of the Act and any Rules made thereunder, grant or refuse to grant the licence or lease. Rule 24 of the Rules deals with the disposal of an application for a mining lease. If says that an application for the grant of a mining lease shall be disposed of within twelve months from the date of its receipt and if it is not so disposed of within the said period, it shall be deemed to have been refused. That brings us to Section 11 which provides for preferential right of certain persons. Sub-section (1) of Section 11 lays down that where a prospecting licence has been granted in respect of any land the licensee shall have a preferential right for obtaining a mining lease in respect of that land over any other person, provided that the State Government is satisfied that the licensee has not committed any breach of the terms and conditions of the prospecting licence and is otherwise a fit person for being granted the mining lease. Sub section (2) of Section 11 is made subject to sub-section (1) and provides that where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the applicant whose application was received earlier shall have a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose application was received later. The proviso to sub-section (2) deals with applications received from two or more persons on the same day and states that such applications shall be dealt with after taking into consideration the matters specified in sub-section (3) (sic) to such one of the applicants as the State Government may deem fit. Sub-section (3) of Section 11 reads as under :-

'(3) The matters referred to in subsection (2) are the following:-

(a) any special knowledge of, or experience in, prospecting operations or mining operations, as the case may be, possessed by the applicant;

(b) the financial resources of the applicant;

(c) the nature and quality of the technical staff employed or to be employed by the applicant;

(d) such other matters as may be prescribed.'

We then come to the controversial provision, namely, sub-section (4) of Section 11 which reads as under -

'(4) Notwithstanding anything, contained in sub-section (2) but subject to the provisions of sub-section (1), the State Government may for any special reasons to be recorded and with the previous approval of the Central Government, grant a prospecting licence or a mining lease to an applicant whose application was received later in preference to an applicant whose application was received earlier.'

It is not necessary to refer to the other provisions of the Act. It is sufficient to mention that Section 30 empowers the Central Government to revise any order made by the State Government or other authority in exercise of the powers conferred on it by or under the Act on its own motion or on the application made by the aggrieved party within the prescribed time. Rule 54 of the Rules provides that an aggrieved party may file a Revision Application to the Central Government within three months of' the date of communication of the order sought to be assailed in revision. These in brief, are the provisions which are relevant for the purpose of answering the contentions raised before us on behalf of the petitioner.

7. The first contention urged on behalf of the petitioner was that sub-section (4) of Section 11 of the Act is ultra vires Article 14 of the Constitution inasmuch as it confers arbitrary and unguided power on the State Government to override the priority of an applicant whose application for mining lease is received earlier in point of time. Such an applicant would undoubtedly be entitled to a priority over the other applicants whose applications have been received subsequently by virtue of sub-section (2) of Section 11 of the Act. This conferment of priority under sub-section (2) of Section 11 can, however, be by-passed by the State Government with the approval of the Central Government under sub-section (4) of Section 11 of the Act. That sub-section begins with a non obstante clause and overrides the priority conferred by sub-section (2) of Section 11. In order that a State Government may overlook or by-pass the priority conferred by sub-section (2) of Section 11, two conditions have to be satisfied namely, (i) special reasons must exist for so doing; and (ii) the previous approval of the Central Government must be obtained in that behalf. It is, therefore, clear an a plain reading of sub-section (4) of Section 11 of the Act that the power granted to the State Government is not absolute but is circumscribed by two conditions, namely the requirement to record reasons in writing for overriding the priority of an applicant who has made the application earlier in point of time and the requirement of previous approval of the Central Government in that behalf. It is needless to say that the Central Government would grant approval only if it is satisfied that them are sound reasons for overriding the priority of an applicant who has made the application for the grant of a mining lease earliest in point of time. The special reasons which have to be recorded in writing is an additional check on the exercise of power by the State Government under sub-section (4) of Section 11 of the Act. The proposal to by-pass the priority must be supported by special reasons, meaning thereby, reasons which are sound and logical and germane to the question at issue. If either of these conditions is not satisfied, the exercise of power under sub-sec (4) of Section 11 of the Act would clearly be bad in law and unsustainable.

8. The submission of Mr. Patel, the learned counsel for the petitioner, was that sub-section (4) of Section 11 does not delineate the reasons which should weigh with the State Government in overriding the priority conferred upon an applicant by sub-section (2) of Section 11 of the Act. According to Mr. Patel, even though sub-section (4) of Section 11 provided, that the, State Government shall record special reasons for Override the priority, it does not indicate the grounds on which the priority can be overriden. It was therefore, submitted by Mr. Patel that the discretion vested in the State Government by sub-section (4) of Section 11 is absolute and unguided and confers power on the State Government to discriminate between two applicants who have applied for a mining lease. Now in any system based on the rule of law such as our constitutional system, the conferment of absolute discretionary power on the executive must be frowned upon unless the discretion is confined to well-defined limits. In all cases where the statute confers a discretion on the executive, it would not be correct to brand it as discriminatory. If the legislative policy and object sought to be achieved are clearly defined by the statute and discretion is vested in the executive to effectuate the same, the provision cannot be condemned as constitutionally invalid. In a fast developing society, a variety of complex situations may arise and it would be well-high impossible for the legislature to foresee each such situation. To effectively deal with such unforeseen situations, it is but necessary for the legislature to confer ample discretion on the executive to effectively implement the policy and object of the statute as are clearly defined in the provisions made therein. The mere fact that it confers a wide discretion on the State whom the legislature has trusted to carry out the purposes of the Act will not render the discretion unguided and arbitrary. It must not be forgotten that the Parliament has confided in the State Government and has conferred the rower to override the priority therein and has not left the matter in the bands of petty executive officers. Even so, the power conferred has been circumscribed by two checks, namely, the requirement to give special reasons and the requirement to obtain previous approval of the Central Government for the exercise of the said power. If either of these two conditions is not satisfied, the exercise of power would be illegal and would be liable to be struck down. It is, therefore, obvious that while granting a discretion to the State Government to override the priority conferred on an applicant by sub-sec (2) of Section 11, Parliament has taken extra caution to impose the aforesaid two conditions for the exercise of that discretionary power. The Central Government would not grant approval unless It is satisfied that the reasons, given by the State Government for overriding the priority of an applicant are sound, germane and rational In addition to these two checks found in sub-section (4) of Section 11 there is the further check that any order passed in exercise of power conferred upon the State Government by sub-section (4) of Section 11 of the Act is open to judicial scrutiny. As the State Government is obliged under sub-section (4) of Section 11 to state the special reasons which impelled it to override the priority conferred on an applicant by sub-section (2) of Section 11, it follows that the reasons must be sound and logical and must stand judicial scrutiny. If an order is passed arbitrarily, such an order would not stand judicial scrutiny and would be liable to be struck down. If the reasons given by the State Government for overriding the priority of an applicant are not sound and logical, or are ex facie unsustainable, the order would not stand the test of judicial scrutiny and would, therefore, fall. Therefore, having regard to the fact that even though sub-section (4) of Section 11 of the Act grants a discretion to the State Government to override the priority of an applicant it is not possible to say that the discretion granted to the State Government is so absolute uncontrolled and unguided that it can with impunity, by pass the just claim of priority of an applicant in favour of another person even though valid reasons do not exist for the exercise of power, We are of the opinion that while conferring discretionary power on the State Government. Parliament has provided two checks in sub-section (4) of Section it and in addition to these two checks there is the check of judicial scrutiny which must be read in that sub-section. We are therefore of the opinion that it is not possible to agree with the submission of Mr. Patel that the power granted to the State Government under sub-section (4) of Section 11 of the Act is so absolute that the State Government would be able to discriminate between two applicants with impunity if it is minded so to do. We are of the opinion that sufficient safeguards have been provided by Parliament while granting. This discretion to the State Government and in addition to the two safeguards which have been engrafted in the sub-section itself, there is also the additional safeguard of the order standing the test of judicial scrutiny and hence we do not think that the discretion can be exercised by the State Government in a discriminatory fashion. For these reasons, we do not see any merit in the first submission made by Mr. Patel.

9. It was next submitted by Mr. Patel that there were no valid reasons for the State Government to by-pass the priority of the petitioner and to grant a mining lease to respondent No. 3 whom application was subsequent to that of the petitioner. Mr. Patel further stated that the State Government was actuated by considerations other then that which could be validly taken into account in seeking the Central Government's approval for by-passing the petitioner's priority. According to Mr. Patel, the impugned order is clearly an abuse of the power conferred upon the State Government by sub-section (4) of Section 11 of the Act and is, therefore, liable to be struck down. According to him the priority was given by the State Government to respondent No. 3 without there being any legal justification for the same and merely with a view to helping the respondent No. 3 the Directors whereof had close and intimate relations with the concerned Minister. The State Government wrote a letter to the Central Government on 13th June, 1978 for granting approval for overriding the priority of the petitioner to which he was entitled under sub-section (2) of Section 11 of the Act. In that letter, after setting out the history, the State Government proceeds to say-

'In view of the facts explained above the application of Shri R. J. Patel (the petitioner herein) stands in priority. But he has no industrial unit of his own. He is interested in selling the said Mineral in question while M/s. Paushak Limited (respondent No. 3 herein) have been granted a licence to manufacture and to formulate carboryle and other pesticides which are widely used in agriculture in their factory at their factory at Panelav in Panchmahals District which is a notified backward area. The total outlay of the whole complex of theirs is 2 crores. Soap-stone, is the main raw material for these pesticides. Therefore, State Government extends its full support and cooperation for granting a Mining Lease by overriding the priority of Shri R, J. Patel for their material as captive use for years to come.'

We were shown the office copy of the letter written to the Central Govern by Mr. Nanavati, the learned Assistant Government Pleader, appearing on behalf of the State Government. We have extracted the aforesaid paragraph from the said letter for the purpose of pointing out the three reasons which weighed with the State Government in making the proposal to the Central Government to override the priority of the petitioner. These three reasons are: (i) the factory of respondent No. 3 is situated in a notified backward - area; (ii) respondent No. 3 bas been granted a licence to manufacture and formulate carboryle and other pesticides and soap-stone is the main raw material for the said pesticides; and (iii) the said pesticides are widely used in agriculture. As against these three considerations which weighed with the State Government in seeking the Central Government's approval for overriding the priority, it was also pointed out that so far as the petitioner is concerned he has no industrial unit of his own and is merely interested in selling the said mineral to other consumers. If as a matter of policy the State Government desired to boost up an industry located in a notified backward area and intended to put the mineral in question in captive use for the manufacture of carboryle and other pesticides useful to our agriculture, it is difficult to say that the State Government was actuated by oblique motives in granting the lease in question to respondent No. 3. In the affidavit-in-reply filed on behalf of the State Government by Shri K. G. Chhatbar. Under Secretary to the Government of Gujarat, Industries, Mines and Power Department, it has been in terms stated that the aforesaid three reasons and the fact that the industrial complex of respondent No. 3 had a total outlay of approximately 2 crores weighed with the State Government in seeking the approval of the Central Government to override the petitioner's priority. The Central Government must have carefully examined the reasons which prevailed with the State Government in seeking its prior approval under sub-section (4) of Section 11 of the Act before it acceded to its request and granted the approval sought. It was only after the approval of the Central Government was received that the State Government passed the impugned order of 28th August, 1978. By the said order, the State Government has ensured that the mining lease is granted to an industry which is expected to utilise the said raw material for captive consumption and the use thereof will be for the manufacture of pesticides which in its turn will help agriculture as such pesticides are widely used to protect our crops. We are, therefore, of the opinion that the State Government has overridden the priority of the petitioner for valid reasons and we do not think that this is a case of misuse of its power conferred by sub-section (4) of Section 11 of the Act. We, therefore, do not see any merit in the second contention urged before us by Mr. Patel.

10. The impugned order was next challenged on the ground that the rules of natural justice were violated in that the petitioner was not given a hearing before his priority was by-passed under sub-section (4) of Section 11 of the Act. The said sub-section does not in terms provide that an applicant whose priority is sought to be by-passed shall be heard before a final order is made in favour of any other applicant whose application was subsequent in point of time. Now before the impugned order was made on 28th August, 1978, it is clear that the concerned Minister, respondent No. 2, had called the petitioner for discussion by his letter dated 11th April, 1978 in reply to the letter of respondent No. 3 dated 17th December, 1977. The meeting was held in the chamber of the concerned. Minister, respondent No. 2, on the morning of 18th April, 1978. Before this meeting was arranged, a fresh application from respondent No. 3 for a mining lease was received in the prescribed form by the State Government on 4th January 1978. Admittedly, the petitioner was present at the said meeting and it was disclosed to him in the course of the discussion that the State Government was inclined to override his priority and grant a mining lease to respondent No. 3. The details of the discussion in the chamber of the concerned Minister have not been set out in the affidavit but it is clear from the submissions made by Mr. Patel that the petitioner was pointedly told that the State Govt. intended to move the Central Government for its approval to override his priority. It was only after that meeting that the State Government wrote to the Central Government on 13th June 1978 for according approval to override the priority of the petitioner. It is, therefore, clear from these facts that the rule of audi alteram partem was strictly followed in the instant case and it was only after the petitioner was heard in the matter that the State Government moved the Central Government for overriding his priority. We, therefore, do not see any merit in the contention of Mr. Patel that the order passed by the State Government on 28th August, 1979 is bad in law as the petitioner was not given a hearing before his priority as by-passed.

11. That brings us to the question of mala fides. We have on facts and for reasons stated earlier come to the conclusion that there were valid reasons for the State Government to exercise power under sub-section (4) of Section 11 of the Act. On that finding the question of mala fides would clearly recede in the background. If it is found that, the power was exercised on just and valid considerations, it can hardly be urged that the power was exercised mala fide, However, we shall proceed to point out that even on merits, the submission that the power was exercised because the concerned Minister, respondent No. 2, wanted to help respondent No. 3 is without substance. The submission of Mr. Patel is that the Minister, Shri Makrand Desai, belongs to Baroda and was elected to the Legislative Assembly from Vanthli constituency of Baroda. Shri Ramanbhai B. Amin and his son Shri Chirayu R. Amin, who are the Directors of respondent No. 3 Company, hail from Baroda and were intimately known to the said Minister. Mr. Patel, therefore, argues that the concerned Minister was out to help respondent No. 3 Company because of his close and intimate relations with the aforesaid two Directors of the Company. That is why, argues Mr. Patel, the, Minister entertained the letter dated 17th December, 1977 written on behalf of respondent No. 3, notwithstanding the fact that even the second application of the said respondent stood rejected by efflux of time on that date. He urged that realising this difficulty respondent No. 3 made a fresh application on 4th January H78 to enable the concerned Minister to exercise power under Section 11(4) of the Act. Two of the Directors of respondent No. 3 Company. Shri Bhailalbhai D. Patel and Ramanbhai B. Amin have filed affidavits denying all these allegations. The then Minister Shri Makrand Desai in his affidavit frankly admits-

'I can be said to be acquainted with Shri Ramanbhai Amin and Shri Chirayu Amin.'

but denies that his relations with the said two Directors were 'very good' and because of such intimate relations and because of the assistance rendered by them at the general assembly elections at which he was elected he had gone out of his way to oblige them with the mining lease in question. In the affidavit-in-reply filed on behalf of the State Government also, these allegations have been broadly denied. Mr. Patel submitted that it was only because of these close and intimate relations which the said two Directors of respondent No. 3 Company had with the then Minister that the latter went out of his way to help respondent No. 3 in securing the lease in question by allowing the petitioner's application to lapse and driving the petitioner to file three revision applications one after another to the Central Government under Section 30 read with Rule 54 of the Rules. There is no concrete evidence to suggest that the then Minister had taken a personal interest in the matter and bad decided to grant the lease. In respect of the mineral in question to respondent No. 3 anyhow. On the contrary, we have come to the conclusion that there were sound and valid reasons for the State Government to request, the Central Government to accord its approval to override the priority of the petitioner. The allegation of mala fides, however, suffers a severe setback when we take into consideration the fact that even on a prior occasion, that is, on 26th February, 1975 during the period of the President's rule the State Government had approached the Central Government under Section 11(4) of the Act for over riding the priority of the petitioner to enable it to grant a mining lease in respect of the mineral in question to respondent No. 3. On the said letter of the State Government, the Central Government had conveyed its approval by its letter dated 20th January, 1976 but by the time the said approval was received, the application of respondent No. 3 stood rejected by efflux of time by virtue of Rule 24 (3) of the Rules. The State Government was therefore, helpless because the question of overriding the priority would arise only when there are more than one applicants in the field. In the instant case the State Government had the application of the petitioner and that of respondent No 3 and since the application of respondent No. 3 stood reject ed on the expiry of the period of twelve months by the thrust of Rule 24 (3), even though the Central Government's approval was received, it was of no avail whatsoever. If during the President's rule when the concerned Minister was not in office the State Government had taken a decision to grant the lease to respondent No. 3 by overriding the priority of the petitioner, it cannot be urged that the Minister Shri Makrand Desai was actuated by mala fides in deciding to exercise power under sub-section (4) of Section 11 of the Act merely, because two of the Directors of respondent No. 3 Company were known to him. If the concerned Minister belongs to Baroda and if the two Directors of the Company also belong to Baroda, it is quite natural that they would be known to each other but merely because of that acquaintance it cannot be said that the Minister acted mala fide with a view to helping respondent No 3 in anyhow securing the lease in question by overriding the priority of the petitioner. We, therefore, do not see any substance to the fourth contention urged before us by Mr. Patel.

12. That brings us to the last contention, namely, that the approval granted by the Central Government under Section 11(4) of the Act betrays non-application of mind. It was submitted by Mr.Patel that in pursuance of the letter addressed by the State Government on 13th June 1978, the Central Government gave its approval by its letter dated 5th August, 1978. He submitted that on 5th August, 1978, the third revision application of the petitioner was pending before the Central Government and it was disposed of' subsequently on 21st August 1978 with a direction to the State Government to dispose it of on merits within a period of two hundred days. Merely because the revision application of the petitioner was pending before the Central Government we fail to understand how it can be said that the Central Government in according its approval to the proposal of the State Government to override the priority of the petitioner acted without application of mind. It is only when there are two applicants in the field that the question of overriding the priority of one who has applied earlier in point of time can arise under sub-section (4) of Section 11 of the Act. Because the revision application of the petitioner was pending before the Central Government, his application for the grant of a mining lease in respect of the mineral in question was considered alive and it is on that basis that the Central Government went into the question whether the approval should be granted to the proposal of the State Government to override the petitioner's priority. After applying its mind to the grounds set out by the State Government in its letter dated 13th June, 1978 the Central Government decided to grant the approval sought by the State Government. We therefore, fail to understand how it can be urged that merely because the revision application of the petitioner was pending before the. Central Government, the Central Government in granting the approval sought by the State Government could be said to have failed to apply its mind to the question at issue before it. It was, however submitted by Mr. Patel that a paragraph 9 of the affidavit-in-reply filed on behalf of the State Government it is deposed that the petitioner's second revision application was deemed to have been rejected on 18th May, 1978. Thereafter the State Government did not receive any application in revision or any intimation from the Central Government till the State Government granted the mining lease in favour of respondent No. 3. From these averments made in the affidavit-in-reply, Mr. Patel submitted that if according to the State Government the petitioner's second revision application stood rejected on 18th May, 1978, and thereafter they were not aware of any further revision filed by the petitioner before the Central Government, the State Government could not have written the letter for approval of the Central Government on 13th June, 1978 because on that date the petitioner was not in the run. This argument, however, overlooks the fact that under R. 54 of the Rules a revision application can be filed by the aggrieved party within a period of three months from the date of communication of the decision reflecting the application. On the date the State Government wrote the letter for approval, the time for filing a revision application had not yet elapsed. On the date the Central Government took its decision whether to grant approval or not, the petitioner was very much in the run as his revision application was pending. It was on that date that the Central Government had to decide whether there were more than a single applicant in the field and if yes, whether a case was made out by the State Government for approval to override the priority of the applicant who had made the application earlier in point of time. On that date undoubtedly there were two applicants in the field and the Central Government after carefully considering the reasons set out by the State Government in its letter of 13th June, 1978 for overriding the priority of the petitioner, accorded sanction or approval under Section 11(4) of the Act. On the date the State Government passed the impugned order, the application of the petitioner as well as the fresh application of respondent No. 3. made on 4th January 1978 were in the field and the State Government on receipt of the approval from the Central Government exercised power under sub-section (4) of Section 11 of the Act. In these circumstances it cannot be said that the Central Government had failed to apply its mind while granting the approval in question and the State Government was actuated by considerations other than those which be legally taken into account in passing the impugned order. We, therefore, do not see any merit in the last submission made by Mr. Patel for the petitioner.

13. In the result, therefore, this, petition fails and is dismissed. There will, however, be no order as to costs. Rule discharged.

14. At this stage Mr. Patel, the learned counsel for the petitioner prays for a certificate of fitness to appeal to the Supreme Court under Article 113(1) of the Constitution. We do not think that the petition raises any substantial question of law of general importance which is required to be decided by the Supreme Court. We, therefore, reject the oral application of Mr. Patel.

15. As the petitioner proposes to move the Supreme Court for special leave, we direct that status quo shall be maintained for a further period of three weeks.

16. Petition dismissed.


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