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Kanhaiyalal Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1312 of 1976
Judge
Reported inAIR1977Raj203; 1977()WLN139
ActsConstitution of India - Article 226 and 226(3); Constitution of India (42nd Amendment) Act, 1976; Mines and Minerals (Regulation and Development) Act, 1957 - Sections 30; Rajasthan Minor Mineral Concession Rules, 1959 - Rules 9(2), 20, 36 and 60
AppellantKanhaiyalal
RespondentState of Rajasthan and ors.
Appellant Advocate S.R. Joshi, Adv.
Respondent Advocate D.K. Soral, Adv. (for No. 3) and; S.B. Mathur, Dy. Govt. Adv. (for Nos. 1, 2 and 4)
DispositionPetition dismissed
Cases ReferredNand Kishore Saraf v. State of Rajasthan
Excerpt:
.....- rule 60--director ignoring cooperative society & scheduled castes in allotment of mining lease state government steps in exercise of revisional powers & cancels director's order without giving notice to petitioner held, government had justification to act--no illegality or substantial failure of justice is caused to invoke extraordinary jurisdiction.;the director of mines and geology completely omitted to notice the directions issued in the letter of february 14, 1962 providing for giving preference to the cooperative society or the scheduled castes. the state govt. had thus ample justification to step in and correct the decision of the director which was in complete contradiction to its policy and rules. though, therefore, [he petitioner may have had some paint in not..........is vested in the director of mines and geology. rule 60 of the rules of 1959 provides that the state government may, in respect of any order, whether in appeal or otherwise, passed under these rules by the director, mining engineer or the assistant mining engineer, on application made in this behalf or on its own motion, call for and examine the connected records for the purpose of satisfying itself as to the correctness, legality or propriety of the order and may confirm, vary or rescind such order.3. the auction for the grant of mining lease of sand-stone was held on september 4, 1975. the petitioner gave bid of rs. 15,100 (which was the highest) while the bid of respondent no. 3 was of rs. 12,000. the petitioner, as required by the rules, deposited 25 per cent of the amount of bid.....
Judgment:
ORDER

Rajindar Sachar, J.

1. The Parliament has framed the Mines and Minerals (Regulation and Development) Act, 1957, (to be hereafter referred to as 'the Act of 1957'). The Act of 1957 divides the minerals into major minerals and minor minerals. Section 15 of the Act of 1957 empowers the State Governments to make rules regulating the grant of prospecting licenses and mining leases in respect of minor minerals and for purposes connected therewith. The Rajasthan State, under the powers given to it by the Act of 1957, has framed the Rajasthan Minor Mineral Concession Rules, 1959 (hereafter referred to as 'the Rules of 1959'). Rule 20 of the Rules of 1959 empowers the grant of lease of a minor mineral by public auction.

2. Rule 36 of the Rules of 1959 provides the procedure for holding auction for the grant of mining a minor mineral lease. Sub-clause (5) of Rule 36 of the Rules of 1959 provides that no bids should be regarded as accepted unless confirmed by the Government or the competent authority. Schedule III of Rules of 1959, contains delegation of the powers under the Rules of 1959, and shows that the power to confirm a bid in an auction upto the amount of Rs. 20,000 is vested in the Director of Mines and Geology. Rule 60 of the Rules of 1959 provides that the State Government may, in respect of any order, whether in appeal or otherwise, passed under these Rules by the Director, Mining Engineer or the Assistant Mining Engineer, on application made in this behalf or on its own motion, call for and examine the connected records for the purpose of satisfying itself as to the correctness, legality or propriety of the order and may confirm, vary or rescind such order.

3. The auction for the grant of mining lease of sand-stone was held on September 4, 1975. The petitioner gave bid of Rs. 15,100 (which was the highest) while the bid of respondent No. 3 was of Rs. 12,000. The petitioner, as required by the Rules, deposited 25 per cent of the amount of bid for one year and 25 per cent, of the amount as security for the bid for the terms and conditions of the mining lease. The bid of the petitioner was confirmed by the Director of Mines and Geology, respondent No. 2, as conveyed by letter dated January 7, 1976. No lease deed was however executed in favour of the petitioner and in the meanwhile the petitioner received a communication dated July 20, 1976 from respondent No, 2 (Director) intimating him that the State Government, on consideration, had decided by its order dated June 30, 1976, that the lease be granted in favour of respondent No. 3 for Rupees 15,100 and consequently the confirmation of the order in favour of the petitioner communicated to him by letter dated January 7, 1976, should be treated as cancelled and orders had been passed to refund the amount of Rs, 7,555 deposited by the petitioner. The petitioner was naturally aggrieved and has come up to this Court to challenge the impugned order of the State Government.

4. The main grievance of the petitioner is that once the bid has been confirmed by the Director of the Mines and Geology, who was a competent authority under the Rules of 1959, there was no jurisdiction in the State Government to cancel the lease in favour of respondent No. 3 and that too without giving any hearing to him. In the reply filed by the State, it has been admitted that the auction of the quarry was held on September 4, 1975. It is, however, stated that on September ll, 1975, respondent No. 3 which is a co-operative society consisting of 16 members, out of whom 15 members are of Scheduled Castes, applied to the Mining Engineer, Bharatpur, that they should have been given the mining lease instead of the petitioner. The Mining Engineer, by his letter dated December 4, 1975 submitted all the auction papers to the respondent No. 2, Director of Mines and Geology, for according sanction of the lease in favour of the Society, respondent No. 3, but in spite of this, the Director confirmed the bid in favour of the petitioner by his letter dated January 7, 1976. It is stated that the State Government called the record in exercise of its powers under R. 60 of the Rules of 1959, and considering the direction issued by the State Government as well as the Central Government for giving preferential treatment to the co-operative societies, directed that the lease be given in favour of respondent No. 3. Reliance is also sought to be placed on R. 9 of the Rules of 1959, as amended.

5. It cannot be denied that no hearing was given to the petitioner when the State Government, in exercise of its re-visional powers, cancelled the order of the Director of Mines and Geology, dated January 7, 1976 and granted lease to respondent No. 3. The learned counsel for the petitioner, Mr. S.R. Joshi, cited AIR 1960 SC 606; Shivji Nathubhai v. Union of India, AIR 1967 SC 1269; State of Orissa v. Binapani Dei, AIR 1970 SC 1896, Purtabpur Co. Ltd. v. Cane Commis-sioner of Bihar and (1971) 3 SCC 864: (AIR 1973 SC 205); The D. F. O. South Kheri v. Ram Sanehi Singh, for his contention that natural justice requires that if any prejudicial order is to be passed against a party, he has a right of hearing. His contention also is that as the competent authority i.e. Director of Mines and Geology, under the Rules of 1959, had awarded a lease in favour of the petitioner, any order passed to the prejudice of the petitioner by the State Government in revision could only have been passed after giving hearing to the petitioner. So stated, the proposition is unexceptionable. There can be no doubt that if the State Government, in exercise of its revisional powers, has to modify an order passed in favour of a party, rules of natural justice require that the party should be given a hearing. Unfortunately, for the petitioner, there is a hurdle in the way of the petitioner but for which the petitioner's contention may have had some force. The hurdle is that Section 30 of the Act of 1957 provides for a remedy toy way of revision to the Central Government against any order passed by the State Government in exercise of powers conferred on it under the Act of 1957. In 1974 Raj LW 330: (AIR 1975 Raj 182), Champalal v. State of Rajasthan, a mining lease had been given under the Rules of 1959 which was challenged by the writ petitioner in this Court. One of the preliminary objections, which succeeded, was that the writ petitioner had not availed of the alternative remedy under Section 30 of the Act of 1957. It was sought to be urged before Joshi J. that remedy of revision under Section 30 of the Act of 1957 was only applicable in regard to major minerals and not to minor minerals. This plea was rejected by Joshi J., who held that there is nothing in Section 30 of the Act of 1957 to show that the powers of revision conferred under the Act were confined to order in regard to major minerals only and not to minor minerals. Mr. Joshi, learned counsel for the petitioner, sought to distinguish Champalal's case by contending that in that case State Government had passed the impugned order in the first instance while in the present case it had been passed in revision. I do not agree. Section 30 of the Act of 1957 provides for a revision to Central Government against any order passed by State Government and nowhere limits the powers of the Central Government to orders passed by the State Government in the first instance only. In view of that authority, it is clear that alternative remedy by way of revision under Section 30 of the Act of 1957 was available to the petitioner and it has not been availed by him. It is no doubt true that availability of alternative remedy has been held by the various courts not to toe absolute bar to jurisdiction of this Court to exercise its powers under Article 226 of the Constitution. But this position has now been altered by the Constitution (42nd Amendment) Act, 1976. A new Article 226 of the Constitution has been substituted. Clause (3) of the Article provides that no petition for the redress of any injury, referred to in Sub-claues, (b) and (c) of Clause 1 shall be entertained if any other remedy for such redress is provided for by or under any law for the time being in force. Section 55 of the Constitutional (42nd Amendment) Act, 1976 further provides that notwithstanding anything contained in the Constitution, every petition under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day, shall be dealt with in accordance with the provisions of Article 226 as substituted by Section 58. It is apparent that the present petition is to be governed by the substituted, Article 226. Clause (3) of the substituted Article 226 now places a complete embargo on the entertainment of any petition if there is any other remedy provided under any other law. In view of the decision by Joshi J. in Champalal's case, with which I respectfully agree, as there is an alternative remedy available to the petitioner by way of revision to the Central Government, this petition under Article 226 of the Constitution cannot be proceeded with and has to be dismissed as not maintainable.

6. Even otherwise, I find that the decision of the State Government in giving the lease to respondent No. 3 on the ground of preference, because it is a cooperative society, cannot be objected to. Mr. Joshi had sought to urge that Rule 9, which was amended on February 19, 1976 does not provide any preference for the co-operative society as such. But a reference to Sub-rule (2) of Rule 9 will show that notwithstanding anything contained in Sub-rule (1), the mining lease for masonry stone, Bajri, shall be granted to the categories of persons mentioned in that sub-rule and includes persons belonging to Scheduled Castes and Scheduled Tribes. In the present case, 15 out of 16 persons of the co-operative society, respondent No. 3, belong to the Scheduled Castes and would thus be entitled to be granted the mining lease for sand-stone.

7. There is also no force in the argu- ment of Mr. Joshi, learned counsel for the petitioner, that preference cannot be given to co-operative societies under the Rules of 1959. There is a letter of February 14, 1962 by the State Government saying that co-operative societies be given encouragement.

8. In AIR 1965 SC 1992, Nand Kishore Saraf v. State of Rajasthan, it was held by the Court that Rule 36 of the Rules of 1959 does not compel the Government to accept the highest bid and that it does not mean that it cannot grant the lease to any person other than one who had bid the highest. The Supreme Court referred to the Government policy as (laid) in the letter of Feb. 14, 1962 which favours the co-operative society and observed that the grant cannot be held to be arbitrary or without any justification because the co-operative society consists of the labourers working in the mines and it is obvious that any benefit arising out of the contract would go to the labourers and thus improve their economic position. The Supreme Court also found that this letter was in accordance with the spirit underlying Rule 59, which empowers the Government be relax any provision of the rules in the interest of mineral development or better working of mines. In the present case, the Director of Mines and Geology completely omitted to notice the directions issued in the letter of February 14, 1962 providing for giving preference to the co-operative society of the Scheduled Castes. The State Government had thus ample justification to step in and correct the decision of the Director which was in complete contradiction to its policy and rules. Though, therefore, the petitioner may have had some point in not having been heard when the State Government exercised its revisional power, I do not find that there has been any such illegality or such substantial failure of justice as to call for interference under extraordinary jurisdiction of this Court under Article 226 of the Constitution.

9. The result is that the petition fails and it is dismissed without any order as to costs.

10. The learned counsel for the petitioner urges that it should be directed that it is open to him to seek any alternative remedy that may be available to him, in view of my decision as to the non-maintainability of writ petition on the ground of alternative remedy. I do not think that any directions by this Court are required by a party to enable him to seek any remedy that is available to him under the law. The petitioner is at liberty to pursue any course permitted to him under the law.


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