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Padam Chand Vinay Chand Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Spl. Appeal No. 11 of 1977
Judge
Reported inAIR1980Raj89
ActsConstitution of India - Article 226(3); Mines and Minerals (Regulation and Development) Act, 1957 - Sections 5(1) and 30; Mineral Concession Rules, 1960 - Rules 22, 54 and 55
AppellantPadam Chand Vinay Chand
RespondentUnion of India (Uoi) and ors.
Appellant Advocate C.L. Agarwal, Adv.; R.K. Rastogi, Adv.
Respondent Advocate M.B.L. Bhargava and; C.K. Garg, Advs.
DispositionWrit appeal dismissed
Cases ReferredNirode Baran Banerjee v. Union of India
Excerpt:
.....the learned single judge dismissed the writ petition holding that under rule 26 of the rules, the state government has powers to grant a lease over the whole or part of the area applied for, and if section 11 of the act and rule 26 of the rules are read together, which, in his opinion, should be so read, there appears to be no illegality in the order of the central government it was further observed that the appellants have failed to show that they have suffered any substantial injury and under article 226(b) of the constitution of india, a writ of certio-rari cannot be issued. the supreme court set aside the judgment and the order of the high court and restoring that of the central government held that there is no rule whatsoever which says that failure to submit the correct fee at the..........the mining lease for an area of 209 acres to prakash chandra jain respondent no. 3. and the mining lease application of the petitioners was rejected vide order no. f.32(69)/khaniz/ 71. jaipur dated the 1st jan., 1971 on the ground that priority has been given to prakash chandra jain and the area is now not free for allotment.3. the appellants preferred a revision under section 30 of the mines and minerals (regulation and development) act, 1957 (hereinafter referred to as the act) read with rule 54 of the mineral concession rules, 1960 (hereinafter referred to as the rules) before the central government. after calling for the comments and counter-comments of the parties, and after considering the record the central government vide order dated nov. 26, 1974 (ex. 13 to the s. b. writ.....
Judgment:

Mahendra Bhushan, J.

1. This appeal has been preferred by the petitioners against the order of the learned single Judge dismissing the S. B. Civil Writ No. 1451 of 1976 of the petitioners.

2. The appellants are a registered partnership firm engaged in the business of mining. In the village Khawa Raoji, Tehsil Dausa, Dist. Jaipur, the petitioners have two mining leases each for an area of 106 acres and 450 acres respectively granted to the petitioners by the Rajasthan Government in the years 1970 and 1971. Close by to this area, there was an area supposed to be a soap stone bearing one, measuring 77.7 hectares, which was previously granted under mining lease to one Shri Anand Singh Kachwaha, but as he did not execute the mining lease, the area was declared free and fresh applications were invited by notification dated Feb. 18, 1970 published in Rajasthan Rajpatra dated Dec. 3, 1970. The petitioners submitted an application for mining lease on Jan. 4, 1971 for an area of 887.46 acres or 359.13 hectares, addressed to the Secretary, Govern-ment of Rajasthan, Mines and Industry Department, Jaipur, Rajasthan, through the Mining Engineer, Government of Rajasthan, Jaipur. Most of the portion of the applied area (887.46 acres) was overlapping the existing area of the said two leases of the petitioners. Shri Prakash Chandra Jain, respondent No. 3, also submitted an application on Jan. 4, 1971 for mining lease for an area of 209 acres, a part of the area of 887.46 acres for which petitioners had applied, and which had become free for grant when Anandsingh Kachwaha did not execute a mining lease. The Government of Rajasthan under Order No. F.32(69)/Khaniz/71, Jaipur, 27th Dec., 1971 granted the mining lease for an area of 209 acres to Prakash Chandra Jain respondent No. 3. and the mining lease application of the petitioners was rejected vide Order No. F.32(69)/Khaniz/ 71. Jaipur dated the 1st Jan., 1971 on the ground that priority has been given to Prakash Chandra Jain and the area is now not free for allotment.

3. The appellants preferred a revision under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the Act) read with Rule 54 of the Mineral Concession Rules, 1960 (hereinafter referred to as the Rules) before the Central Government. After calling for the comments and counter-comments of the parties, and after considering the record the Central Government vide Order dated Nov. 26, 1974 (Ex. 13 to the S. B. Writ Petition) allowed the revision application of the petitioners and the order granting mining lease of 209 acres to respondent No. 3 was cancelled and the case was remanded to the State Government with a direction that the State Government may pass a reasoned order indicating how the matters referred to in Sub-section (3) of Section 11 of the Act were taken into consideration by them.

4. The State Government reconsidered the matter and made an order on 20th Sept., 1975 that Prakash Chandra's standing is on a better footing and hence priority was fixed in his favour. In the order, reasons were given as to how Prakash Chandra (respondent No. 3) was entitled to priority for the grant of mining lease. The application of the petitioners dated Jan. 4, 1971 for the grant of mining lease for an area of 887.74 acres was again rejected by the Slate Government. The respondent No. 3 was granted a lease for non-conflicting area of about 209.05 acres.

5. The appellants again preferred a revision against the order of grant of lease to the respondent No. 3 and the rejection of the application of the petitioners for the grant of lease, before the Central Government and the Central Government vide its order dated June 19, 1976 while exercising its revi-sional powers, and all other enabling provisions in that behalf, set aside the orders of the State Government dated Sept. 20, 1975. It was held (1) that the application dated Jan. 4, 1971 of Prakash Chandra Jain for the grant of mining lease for an area of 109 acres was incomplete and therefore it could not be held that the application of the respondent No. 3 Prakash Chandra Jain was filed the same day. Therefore, the proviso to Section 11 (2) was not applicable; (2) that the area in question applied for by the petitioners is quite large to exploit even after exclusion of the area of the two leases already held by the petitioners. But it was mentioned in the order that on grounds of equity the Central Government would have no objection if a part of the area applied for by the appellants is granted to Prakash Chandra Jain respondent No. 3 on a fresh lease. A direction was also issued that the area should be divided in between the appellants and the respondent No. 3 in the ratio of 60 and 40% respectively. This part of the order of the Central Government was challenged by the petitioners in S. B. Civil Writ Petition No. 1451 of 1976. The grounds on which a part of the order of the Central Government was challenged and is challenged before us are that once having held that the petitioners had preferential right for obtaining a mining lease under Section 11 of the Act, no direction can be issued to bifurcate or to divide the area in between the appellants and respondent No. 3 in proportion of 60 and 40%; (2) that the premises on which the order was made, were wrong in respect of the area covered and of the investments made by the parties; (3) that the petitioners were not given the option to select the area of 60% allotted to them, (4) that mineral operations in Pit No. 6 were performed by the petitioners and fell into their old lease area and respondent No. 3 had conducted no mineral operations.

6. After the reply of the State Government was filed, the learned single Judge dismissed the writ petition holding that under Rule 26 of the Rules, the State Government has powers to grant a lease over the whole or part of the area applied for, and if Section 11 of the Act and Rule 26 of the Rules are read together, which, in his opinion, should be so read, there appears to be no illegality in the order of the Central Government It was further observed that the appellants have failed to show that they have suffered any substantial injury and under Article 226(b) of the Constitution of India, a writ of certio-rari cannot be issued. The same rather abates.

7. The first submission of the learned Advocate for the petitioners is that the approach of the learned single Judge that the claim of the petitioners is founded on preferential right conferred by Section 11 of the Act and as such a suit can lie to enforce such a right and a writ will not lie, is not correct. According to him, under amended Sub-clause (3) of the Constitution of India the petitioner will be precluded from seeking the redress of any injury referred to in Sub-clauses (b) and (c) of Clause 1 in writ jurisdiction of this Court if other remedy for such redress is provided for 'by or under any other law' for the time being in force. A general right of filing a suit cannot be said to be a remedy made available 'by or under any other law'. We are of the opinion that to attract the bar of Sub-clause (3) of Article 226 of the Constitution, the remedy of suit, appeal, revision, review or other proceedings must have been available to the appellants under the very statute or the rules made thereunder and a general right of filing a suit cannot be said to be the remedy made available 'by or under any other law.' In the instant case, a perusal of the provisions of the Act and rules will make it clear that once an order is passed by the Central Government in revision or even otherwise, there is no specific right of filing a suit even jf the preferential right of the applicant for a grant of mining lease is ignored by the competent authorities. Therefore, in our opinion, on this ground, the learned single Judge should not have dismissed the writ petition.

8. It is next contended by the learned Advocate for the petitioners that the application dated Jan. 4, 1971 of respondent No, 3 for a mining lease was incomplete, and, therefore, the State Government or for that matter the Central Government could not have ordered the grant of lease to respondent No. 3 for 40% of the area. The learned Advocate for respondent No. 3 submits that though the Central Government while disposing of the revision of the appellants have held that the application dated Jan. 4, 1971 for a mining lease of respondent No. 3 was incomplete, but it has been wrongly held so and while supporting the order of the Central Government passed in favour of respondent No. 3, the respondent No. 3 has a right to support it even on the grounds decided against him. According to him, firstly the application was complete and was rightly entertained by the State Government and secondly even if it be taken to be incomplete, it was completed on Jan. 5, 1971, when the demand draft dated Jan. 4, 1971 for Rs. 4,100/- alleged to be due towards payment of mining dues was delivered. According to him, the date of application to be taken is the date of its presentation and not its completion. It cannot be disputed that a party can support the order passed in his favour on any of the grounds decided against him.

9. Mr. Bhargava, the learned Advocate for respondent No. 3 in support of his submission has placed reliance on Dastgir Saheb M. Mohiddin v. Union of India, AIR 1964 Punj 432, Krishna Kumar v. Phulchand Agarwala, AIR 1977 SC 984 and Pandit Bbullan v. Sarvodaya Vita Kavelu Kumbhar Kam Sahkari Audyogik Udpadak San-stha Ltd. Bina, AIR 1978 Bom 259. But Dastgir Saheb's case will not apply. It was a case under the Mineral Concession Rules, 1949. Under Clause 13 of those rules, it was not necessary that the application for a prospecting licence should have been accompanied by an income-tax clearance certificate, whereas under the rules, it should be so accompanied. But Krishna Kumar's case and Pandit Bhullan's case in which Krishna Kumar's case was followed have some bearing to the present case,

10. In Krishna Kumar's case the facts were that an application for prospecting licence was submitted on 14-10-61. But, instead of Rs. 32/- only Rs. 24 accompanied the application. This mistake was realised and the deficiency of Rs. 8/- was paid on 28-12-61. In the meantime, the respondent also applied for licence on 2-11-61 for 748-16 acres out of which 272.40 were common with those for which the appellant had already applied. The prospecting licence was granted for an area including 272 Acres in dispute. In revision, the Central Government accepted the appellant's objection relating to 272 Acres. The respondent went in High Court and the High Court in a petition quashed the order of the Central Government taking a view that the original application of the appellant dated 14-10-1961, not having been accompanied by correct fee, it was no application in the eye of law. The Supreme Court set aside the judgment and the order of the High Court and restoring that of the Central Government held that there is no rule whatsoever which says that failure to submit the correct fee at the time of filing the application will make the application void or invalid. It was further held:

'It may be that a licence cannot be granted without making good the deficiency in the fee which should accompany the application, but that does not mean that bona fide application accompanied by an incorrectly calculated fee or a fee which is deficient by oversight could not be made at all, or, if made, must be treated as void or of no effect whatsoever.'

11. Mr. Agarwal, the learned Advocate for the petitioners submits that it was only a case of deficit fee which was deficient because of bona fide mistake and, therefore, it will not apply to the facts of this case. To our mind, a reading of Krishna Kumar's case leaves no manner of doubt that if there is no rule that failure to submit fee or correct fee at the time of filing of the application will make the application void or invalid merely because the application is not accompanied with a fee or is accompanied with deficit fee, the application cannot be said to be void or invalid,

12. It is not disputed that the respondent No. 3 also submitted his application for raining lease for an area of 209 Acres on January 4, 1971 and delivered the demand draft for Rupees 4100/- dated 4-1-1971 on January 5, 1971 in support of the application. Under Section 5(1)(b) and (c) of the Act, no mining lease can be granted by the State Government to a person unless he produces from the Income-tax Officer concerned an income-tax clearance certificate in the prescribed form; and satisfies such other conditions as may be prescribed. Rule 22 of the Rules deals with applications for grant of mining leases. An application for the grant of a mining lease should be accompanied with a clearance certificate of payment of mining dues and an income-tax clearance certificate.

13. To us, the conjoint reading of Section 5(1)(b) and (c) of the Act and Rule 22 of the Rules will make it clear that no mining lease can be granted by the State Government unless the applicant produces the income-tax clearance certificate and pays mining dues, such as a royalty or dead rent etc., but it cannot be said that merely because the application is not accompanied with the deposits or income-tax clearance certificate due to a bona fide mistake, the application will be rejected being incomplete. We are further of the opinion that it is the date of the application and not the date of its completion which is crucial for the purposes of priority under Section 11 of the Act. But, we will hasten to add that the application should be incomplete because of some bona fide mistake and should be complete in all respects when it comes up for consideration. In the instant case, no sooner the respondent No. 3 came to know on January 4, 1971 that there were dues against him, immediately that very day got prepared a demand draft for Rs. 4100/- and the demand draft dated January 4, 1971 was delivered in the office of the Mining Engineer on January 5, 1971. There was also an income-tax clearance certificate produced by respondent No. 3. Under these circumstances, the application of respondent No. 3 for the grant of a mining lease has to be treated as having been valid on 4-1-1971. Under the facts and circumstances of this case, there was substantial compliance of the rules and the State Government was, therefore, right in entertaining his application as having been presented on January 4, 1971.

14. In their grounds of revision (at pages 190 to 210) before the Central Government, the appellants while challenging the order of the State Government granting lease to respondent No. 3 and rejecting the application of the appellants submitted in para 13 that the previous record of their revision petition including the final order be kindly attached with this revision to make a most lawful and expeditious disposal of the revision. While disposing of a revision under Section 30 of the Act, read with Rule 54 of the Rules, under Rule 55 of the Rules, the record which is to be considered is the revision application, the communications containing comments and counter comments referred to in Sub-rules (1) and (2) of Rule 55. A reference may be made here to R. L. Kothari v. Govt. of India AIR 1970 Pat 189, where Hon'ble Mr. Justice N. L. Untwalia, as his Lordship then was, speaking for the Division Bench observed that it is manifest on the language of Rules 54 and 55 specially Sub-rules (3) and (4) of the Rules that the order of the Central Government is to be passed on the record of the case which consists of the application, the comments and counter-comments of the party and the State Government and upon no other material. A perusal of the record will show that on behalf of respondent No, 3 in the comments and counter-comments, an objection was raised that the Central Government in previous revision application had remanded the case to the State Government only on a technical ground and did not direct the State Government to reconsider the whole matter afresh. The State Government was only asked to pass a reasoned order under Section 11 of the Art while taking into consideration the matters specified therein. It can, therefore, be said that though in the previous revision application, an objection was raised by the petitioners that the application of respondent No. 3 dated January 4, 1971 was incomplete and in para 5 (a) of the Order of the Central Government dated November 26, 1974 (Ex. 13) at page 186, a point was framed whether the application of Shri Prakash Chandra Jain should have been rejected outright because it was not accompanied by income-tax clearance certificate, no decision was given on this point and after accepting the revision, the only direction which was issued to the State Government was as follows;--

'In the instant case as the order does not show the process of reasoning, it appears that the matter will have to be remanded to the State Government after cancelling the order with the direction that the State Government may pass a reasoned order indicating how the matters referred to in Sub-section (3) of Section 11 were taken into consideration by them. Consequently, the Central Government quashes the order of the State Government dated 1-1-1972 and remands the case to it for passing the order as indicated above on or before 1st May, 1975.'

(Note : Underlining has been done by us).

15. The State Government acting as per the direction of the Central Government, extracted above, passed an order on September 20, 1975 giving reasons why priority has been fixed in favour of respondent No. 3. While exercising powers of revision, the Central Government exercises all the powers of the State Government under the Act and the Rules. In Dharam Chand Jain v. State of Bihar, AIR 1976 SC 1433, it has been laid down as follows :--

'We might mention here that under Rule 54 of the Mineral Concession Rules, 1960, the Central Government acts as a revisional Tribunal against any order passed by the State Government and has obviously, therefore, the same powers as the State Government. This matter is no longer res integra and is settled by an authority of this Court in State of Assam v. Om Prakash Mehta (1973) 1 SCC 584 = (AIR 1973 SC 678).'

16. In the above case, it was further held that the State Government cannot decline to carry out the orders of the Central Government passed in revision and at the same time there can be absolutely no legal justification at all for the Central Government to go back upon its earlier order even on the ground which came into existence subsequent to the making of the earlier order. In the case in hand, it can, therefore, also be said that in the previous revision when the point as to whether the application of respondent No. 3 was incomplete was framed and not decided and the case was remanded with a specific direction, which direction was complied by the State Government, it was no longer open to the Central Government to hold in the order dated June 19, 1976 that the application of respondent No. 3 was incomplete.

17. The next submission of the learned Advocate for the petitioners is that it was nobody's case that the area may be bifurcated and given to the petitioners and respondent No. 3 in certain proportions. The Central Government did not give any notice to the petitioners of their intention to pass the order under challenge and, therefore, the same order could not be passed. In this connection, reliance has been placed on Nirode Baran Banerjee v. Union of India, 1970 UJ (SC) 778. In that case, on appellant's revision before the Central Government, the Central Government issued a notice to him stating that it was proposed to reject the revision application on three grounds. The appellant was called upon to send his comments on the proposed rejection of the revision application. But the order of dismissal was founded on four grounds, the first three being those, which were set out in the notice and the fourth being not specified in the notice. The order was set aside. This ruling will not apply to the facts of this case. The parties were given opportunity to offer comments and counter-comments which they actually offered in writing. Under Rule 26 of the Rules, for reasons to be recorded in writing and communicated to the applicant, the State Government has powers to refuse to grant a mining lease over the whole or the part of the area applied for. Under Section 11(4) of the Act, the State Government, for reasons to be recorded and with the previous approval of the Central Government, can grant a mining lease, to an applicant whose application was received later in preference to the application whose application was received earlier. We have observed above that the application for the grant of mining lease of respondent No. 3 was also received on January 4, 1971, the date on which the application of the petitioners was received. Therefore, it was to be dealt with under Sub-section (2) of Section 11 of the Act and the matters referred to in Sub-section (3) of Section 11 of the Act were to be considered. Even assuming, though not accepting, that the order of the Central Government that the application for the grant of mining lease of respondent No. 3 being incomplete was not received on the same day, that is, January 4, 1971, on which date the application of the petitioners was received, even then, it can be said that powers are vested in the State Government and for that matter in the Central Government to have granted the application of the petitioners for mining lease only for a part of the area applied for, and it was not incumbent to have granted the mining lease, for the whole area applied for. No doubt, under Section 63 of the Act, it is necessary that where in any case the previous approval of the Central Government is required under, the Act or Rules, the application for such approval has to be made to the Central Government through the State Government. But, while exercising powers of revision, if the Central Government gives any direction to the State Government, and the State Government acts as per those directions, it can be said that the State Government acted with the previous approval of the Central Government. Therefore, in the facts and circumstances of this case, when the Central Government gave directions and when the State Government as per directions of the Central Government passed in revision, granted the application of the petitioners for the mining lease to the extent of 60% area applied for, and further granted the application of the respondent No. 3 for the grant of mining lease for 40% of the area applied for, it cannot be said that they exercised jurisdiction not vested in them, or failed to exercise the jurisdiction vested in them or acted in excess of their jurisdiction. It can also not be said that there is an error of law apparent on the face of the record. So far as the contention of the learned Advocate for the petitioners that the order of the Central Government in favour of respondent No. 3, is based on wrong premises in respect of the area covered and the investment of the parties is concerned, after having gone through the record of the case, we are unable to persuade ourselves that the order of the Central Government ed was made on the wrong premises dated June 19, 1976 when it was pass-in respect of the area covered and of the investments made by the parties, There was sufficient material available on record with the Central Government to have come to a finding which they arrived at with regard to the area available for the grant and other matters contained in the order. Mr. Agarwal, the learned Advocate for the petitioners could not refer to any provisions of the Act or Rules under which a party whose application for the grant of mining lease is accepted only for a part of the area applied for has an option to select the area.

18. From the reply to the writ petition of the State Government, it is clear that net available area for grant is 443.38 Acres. The area available to the appellants is about 379 Acres, whereas the area available to respondent No. 3 will be less than 60 Acres. The petitioners in their comments to the previous revision application to the Central Government (Ex. 10) (pages 82 to 114) which have been produced by the appellants, mentioned that even after grant of mining lease to the respondent No. 3 for an area of 209.95 acres an area measuring definitely more than 80 acres remained and this area of about 80 acres must have been given to the petitioners. Therefore, it appears that in the facts and circumstances of this case, while ordering that mining lease for 60% of the area be granted to the petitioners and mining lease for 40% of the area be granted to respondent No. 3, the Central Government acted on equitable considerations, as has been observed by the Central Government in its order and BO injury of substantial nature has been caused to the petitioners. Under Article 226(1)(b) and (c) of the Constitution of India, a petition can only lie for redress of any injury of a substantial nature by reason of the contravention of any other provision of the Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other in-struments, made thereunder; or for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (b) where such illegality has resulted in substantial failure of justice. It is not every error that calls for correction in writ jurisdiction. Moreover, in this case, the petitioners have failed to show that the Central Government has contravened any enactment or any illegality has been committed in the proceedings by the Central Government. The petitioners have further failed to make out a case of any injury of substantial nature or that there has been a substantial failure of justice by the order of the Central Government. Therefore, no case for interfering under Article 226 of the Constitution of India is made out.

19. In the result, the special appeal is hereby dismissed. In the facts and circumstances of this case, there will be no order as to costs.


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