Skip to content


Rajasthan Mineral and Co., Jaipur Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1244 of 1972
Judge
Reported inAIR1973Raj289; 1973()WLN233
ActsMineral Concession Rules, 1960 - Rule 24
AppellantRajasthan Mineral and Co., Jaipur
RespondentUnion of India (Uoi) and ors.
Appellant Advocate Hasti Mal Parekh, Adv.
Respondent Advocate Lekh Raj Mehta and S.C. Bhandari, Advs.
DispositionPetition dismissed
Cases Referred and Abdul Ali Abdul Husen v. Mirza Khan Abdul Husen
Excerpt:
.....party.;the opportunity for the purposes of rule 24 shall be taken to have been disposed of by the state government on 27th of july, 1966, when a competent authority on behalf of the state government accorded its final sanction for the grant of mining lease in favour of the petitioner.;if for one reason or the other, the other functionaries in the secretariat, who are are not the sanctioning authority, delayed the despatch of the sanction accorded by the competent authority under the business rules, then it cannot be said that the state government did not want to grant lease to the petitioner. when once the sanction accorded by the minister is communicated to the petitioner, it became final and effective. - - the central government disposed of the revision applications of bhopal mining..........the application for the grant of a mining lease shall be deemed to have been disposed of by the state government for the purpose of rule 24 of the mineral concession rules, 1960 (hereinafter called the rules).2. the facts and circumstances giving rise to this litigation are, in a nutshell, as follows:the petitioner along with six other persons made application for the grant of a mining lease in pursuance of a notification issued by the joint director (administration) of mines and geology, rajasthan, dated 27th september, 1965, whereby an area of 1252.85 hectares in villages nansa, shivrati, jhumpura, bhoor and rampura was declared open for the grant of mining lease under the rules. all these applicants submitted then applications for the grant of mining lease on 28th of october, 1965......
Judgment:
ORDER

V.P. Tyagi, J.

1. This writ petition filed by the Rajasthan Mineral & Company, Jaipur, against the order of the Central Government dated 16th May, 1972 (Annexure 1) raises an important question as to when the application for the grant of a mining lease shall be deemed to have been disposed of by the State Government for the purpose of Rule 24 of the Mineral Concession Rules, 1960 (hereinafter called the Rules).

2. The facts and circumstances giving rise to this litigation are, in a nutshell, as follows:

The petitioner along with six other persons made application for the grant of a mining lease in pursuance of a notification issued by the Joint Director (Administration) of Mines and Geology, Rajasthan, dated 27th September, 1965, whereby an area of 1252.85 hectares in villages Nansa, Shivrati, Jhumpura, Bhoor and Rampura was declared open for the grant of mining lease under the Rules. All these applicants submitted then applications for the grant of mining lease on 28th of October, 1965. It is said that by its order dated 12th August, 1966, the Government of Rajasthan granted minnig lease in favour of the petitioner company and five other applicants, but no order was passed in respect of the application filed by the Bhopal Mining Works, Bhilwara, respondent No. 3. A revision petition was filed against the grant of the said mining lease by Bhopal Mining Works, Bhilwara, and Shri Manoharlal Mansingka (who did not subsequently pursue the proceedings) before the Central Government. The Central Government disposed of the revision applications of Bhopal Mining Works andManoharlal Mansingka by drawing an order which was declared by this Court, when challenged by Bhopal Mining Works, Bhilwara, to be a non-speaking order and, therefore, the order passed by the Central Government on revision application was set aside by this Court and the Central Government was directed to dispose of the revision applications in accordance with the provisions of law as discussed by this Court in its judgment dated 7th November, 1968.

3. The Central Government dispos' ed of the revision application of Bhopal Mining Works, Bhilwara by its order dated 16th May, 1972, whereby it was held that the State Government could grant lease in favour of the petitioner company only upto 27th of July, 1966 and thereafter the State Government was not competent to grant the lease because nine months had elapsed since the application for the grant of mining lease was submitted by the petitioner company on 28th of October, 1965 and therefore the Central Government took it to be a matter of deemed rejection under Rule 24 of the rules and directed the State Government after setting aside the deemed rejection of the applications of the petitioner as well as of other applicants that the applications may be considered afresh. While considering the merits of M/s. Bhopal Mining Works, the Central Government further directed the State Government to grant mining lease to the said firm for the entire area for which an application was made by M/s. Bhopal Mining Works in its application dated 28th of October, 1965, that is, for 500 acres in village Jhumpura and 250 acres in village Shivrati, and as a result of this the State Government was asked to reject the applications of other applicants in respect of the area for which the mining lease was to be granted to M/s. Bhopal Mining Works, Bhilwara.

4. This order of the Central Government has been challenged in this writ petition by the petitioner, inter alia, on the ground that the Central Government has not correctly understood the scope of R. 24 of the rules and since the Minister, who was a competent authority under the Business Rules to dispose of an application for the grant of mining lease had passed an order on 27th of July, 1966, granting lease to the petitioner and in pursuance whereof the petitioner company started functioning as a lessee on the lands leased out to it, it cannot be said that the application of the petitioner company was deemed to have been rejectedby the State Government under Rule 24 as the sanction accorded by the Minister incharge was communicated to him on 12th ofAugust, 1966, under the signatures of the Secretary to the Government. The second ground taken by the petitioner company is that on merits also the Central Governmentcould not have issued any direction for the grant of mining lease to M/s. Bhopal Mining Works without comparing the merits and demerits of all the applicants under Section 11 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter called the Act).

5. Elaborate arguments have been addressed to this Court by learned counsel appearing on behalf of the petitioner as well as Mr. Bhandari, representing M/s. Bhopal Mining Works, Bhilwara and Mr. Lekh Raj Mehta representing the Central Government to show that the application of the petitioner cannot be deemed to have been disposed of by the State Government unless the order of the Minister was formally communicated to the petitioner on 12th of August, 1966, and since the date of the order sanctioning the lease in favour of the petitioner falls beyond a period of nine months, the State Government was not competent under Rule 24 of the rules to grant that lease after 28th of July, 1966. Reliance in this connection has been placed by learned counsel for the respondents on Bachhittar Singh v. State of Punjab, AIR 1963 SC 395; State of Rajas-than v. Sripal Jain, AIR 1963 SC 1323; Nripendra N. Majumdar v. N. M. Bardhan, AIR 1959 Cal 219; State of Punjab v. Khemi Ram, AIR 1970 SC 214; Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas and Co., AIR 1966 SC 543; Secy, of State for India in Council v. Gopisetti Narayanaswami Naidu Garu, (1911) ILR 34 Mad 151 and Abdul Ali Abdul Husen v. Mirja Khan Abdul Husen, (1904) ILR 28 Bom 8.

6. Mr. Hastimal, on the other hand, cited Anand Kumar v. State of U. P., AIR 1966 All 545; Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181 and Nookala Setharamaiah v. Kotaiah Naidu, AIR 1970 SC 1354 to draw support to his contention that in the circumstances of this case the application of the petitioner for the grant of mining lease shall be taken to have been disposed of by the Minister on 27th of July, 1966, when he finally sanctioned the grant of mining lease to the petitioner which was duly communicated to him by the order of the Government dated 12th of August, 1966. According to Mr. Hastimal, if the order of the Minister who was a competent authority under the Business Rules to accord sanction for the grant of mining lease to the petitiones had not been communicated at all to the petitioner, then the authorities cited by the respondents could have helped them to advance their plea of deemed rejection because in that event the order passed by the Minister could not be deemed to be an order in the eye of law as without communicating the same to the petitioner, the Minister was competent to change his orders at any time, but his contention is that since the Minister after sanctioning the lease on 27th of July, 1966, did not change that order till it was communicated to the petitioner by means of a formal order drawn in the Secretariat and signed by the Secretary on 12th of August, 1966, it shall be taken that the application of the petitioner for the grant of mining lease Was disposed of for the purpose of Rule 24 of the rules on 27th of July, 1966, because that order was ultimately communicated to the petitioner.

7. Rule 24 of the rules deals with the disposal of application for mining lease and it reads as follows:

'24. (1) An application for the grant of a mining lease shall be disposed of within nine months from the date of its receipt.

(2) x x x X (3) If any application is not disposed of Within the period specified in sub-rule (1), it shall be deemed to have been refused.'

8. The Supreme Court in AIR 1970 SC 1354 has resolved the controversy once for all that if the State Government fails to grant the mining lease to an applicant within nine months from the date when the application was submitted to the Government, then the Government becomes incompetent to deal with the application pending before it and, therefore, the jurisdiction that was vested in the Government to deal with the applications for the grant of mining lease is lost and thereafter if the order is passed by the Government, that order shall be non est as if passed by an authority which was not competent.

9. The Central Government while disposing of the revision application of the Bhopal Mining Works held that in the instant case the State Government had granted the lease to the petitioner by its order dated 12th of August, 1966, which date undoubtedly falls beyond a period of nine months and, therefore, this is a case of deemed refusal as tha State Government was not competent to grant mining lease to the petitioner after 28th of July, 1966, when the period of nine months expires. The Central Government, therefore, treated this case of the petitioner as a case of deemed refusal. This fact somehow escaped the notice of the Central Government while treating it a case of deemed refusal that the Minister had actually granted his sanction in favour of the petitioner on 27th July, 1966 in pursuance whereof the petitioner company had started working the mine after taking possession of the land demised to it under the agreement of lease executed between the State Government and the petitioner.

10. The circumstances of the instant case, therefore, raise a very important question as to when the application of the petitioner shall be taken to have been disposed of by the State Government; whether it shall b'e deemed to have been disposed of on 27th July, 1966, when the Minister accorded his final sanction for the grant of the mining lease to the petitioner or when the order was formally drawn and despatched to the party by the Secretariat on 12th of August, 1966.

11. Mr. Bhandari argues that the expression 'shall be disposed of within nine months' as used in Rule 24 of the rules should be interpreted to mean that the application for the grant of mining lease is finally decided by the State Government within nine months. According to him, the final decision of the application takes place when the sanction accorded by the competent authority is formally communicated to the grantee. The argument of learned counsel proceeds on this basis that till the order of the State Government is communicated to the applicant, the State Government has a right to change its mind and it can withhold or cancel the sanction duly recorded on the file and, therefore, till the sanction is communicated the application cannot be taken to have been 'disposed of' even though the Minister might have put down his sanction on the file. In this connection, reliance has been placed on a Supreme Court authority in AIR 1963 SC 395 wherein the Supreme Court has held that before something amounts to an order of the State Government two things are necessary: the order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 of the Constitution and then it has to be communicated. In this authority it has been observed by the learned Judges that till this formality is observed, the action taken by the State Government cannot be said to be final. Their Lordships expressed their view as follows:

'Constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Therefore to make the opinion amount to a decision of the Government it must be communicated to the person concerned. It is of the essence that the order has to be communicated t the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore till its communication the order cannot be regarded as anything more than provisional in character.'

12. On the basis of these observations of the Supreme Court, the contention of Mr. Bhandari is that till the order passed by theMinister on 27th of July, 1966, was communicated in the form prescribed under Article 166 of the Constitution, the sanction accorded by the Minister shall be taken to be a mere advice to the Governor and it is not final till that advice is finally communicated in the form of a Government order to a person concerned and it is only thereafter that the order becomes effective and binds the Government as well as the applicant Till then that order is provisional in character and, therefore, even though the Minister had finally accorded his sanction on 27th of July, 1966, it cannot be taken that he had disposed of the application of the petitioner till that order was formally communicated in the name of the Governor to the petitioner and, therefore, in such circumstances it is vehemently contended that the order of the State Government finally disposing of the petitioner's application for the grant of mining lease is the order dated 12th of August, 1966, when it was formally drawn and put in the course of transmission to be communicated to the petitioner.

13. Mr. Lekh Raj Mehta, appearing on behalf of the Union of India, strongly supported Mr. Bhandari and further submitted that the date of the order can be the date when the order is made known to the affected party. This general rule, according to him, has few exceptions which are when the order was made in the presence of the party concerned or when the party affected was informed that the order was going to be announced on a particular day and the party absents itself or when owing to the obstructions of the party affected, the order could not be communicated to him within a reasonable time or when the authority making such order in spite of reasonable efforts has been unable to serve the order within the reasonable time or at all. In support of this submission, reliance has been placed on a Calcutta case in AIR 1959 Cal 219. He also cited authorities from various other High Courts, namely AIR 1966 SC 543; (1911) ILR 34 Mad 151 and Abdul Ali Abdul Husen v. Mirza Khan Abdul Husen, ILR 28 Bom 8.

14. Mr. Hastimal has no quarrel with the law laid down in these authorities and he wants to distinguish his case, firstly, on the basis of the language used in Rule 24 of the rules and, secondly, on the ground that ultimately when the order passed by the Minister sanctioning the grant of mining lease is finally communicated to the petitioner and in consequence whereof the lease agreement was executed between the parties and the area leased out to the petitioner was handed over to him to be worked out by him, it shall be taken that the petitioner was granted lease by the Minister within a period of nine months from the date of the filing of his application.

15. I agree with the arguments advanced by learned counsel for the respondents that the order when passed by anauthority becomes effective only when that order is communicated to the persons affected, but the question which arises in the instant case is not when the order passed by the Minister became effective in this case. The question posed for the determination of this Court is in a different context and the Court is called upon to determine whether the application filed by the petitioner can be said to have been disposed of by the Minister when he passed the order granting the lease to the petitioner on 27th of July, 1966, and when that order was finally communicated to him by drawing a formal order on 12th of August, 1966, without changing the sanction accorded by the Minister on 27th of July, 1966.

16. Both the parties agree that under the Business Rules, it is the Minister who has ultimately to pass the order granting lease to an applicant. The matter is not to be referred to the Governor for final sanction. In such circumstances, whatever the order was passed by the Minister even if it is taken to be an advice to the head of the State, it shall be taken that that advice was deemed to have been accepted by the Head of the State as under the Business Rules that advice was not to go to the Governor for final sanction and in such circumstances that sanction of the Minister cannot be deemed to be a provisional order because it did not require sanctioning from the Head of the State.

17. The only question that now remains to be decided is as to what is the effect of communicating such an order of the Minister which cannot be said to be of provisional character after a lapse of a period of nine months. It is true that unless the order is communicated to a person affected thereby, the authority passing the order has a right to change its mind and consequently to alter the order, but if that order is communicated then can it be said that the order was passed on the day it was communicated and not on that day when it was actually passed by him. In the present case, the lease was sanctioned in favour of the petitioner by the Minister on 27th of July, 1966. It is not disputed by the parties that the sanctioning authority was the Minister and, therefore, as far as the grant of mining lease to the petitioner is concerned the Minister who acted on behalf of the State Government disposed of the application of the petitioner on 27th of July, 1966. The order of the Minister became effective on 12th of August, 1966, when it was communicated to the petitioner. Though technically it may be said that the sanction ac corded by the Minister became irrevocable on 12th of August, 1966 when it was formal ly communicated to the petitioner but for the purposes of Rule 24 it can safely be said that the State Government finally disposed of the matter on 27th of July, 1966 when the Minister passed the final orderwhich was eventually communicated to the party without any change or modification on 12th August, 1966. In these circumstances, the application for mining lease shall be deemed to have been disposed of by the Minister for the purposes of Rule 24 of the rules on 27th of July, 1966 when he passed the order of final nature and which was permitted to be communicated without any modification. It may be mentioned that the Secretaries or the staff of the Secretariat had no business to deal with the order passed by the Minister in any other manner except to draw a formal order and to dispatch it to the person concerned and this formality was completed by the 12th of August, 1966. 'In these circumstances, the application for the purposes of Rule 24 shall be taken to have been disposed of by the State Government on 27th of July, 1966, when a competent authority on behalf of the State Government accorded its final sanction for the grant of mining lease in favour of the petitioner. It is true that the Government could change its order before it was despatched from the Secretariat, but since it was not done, the order which became effective was ultimately the order which was passed by the State Government on 27th of July, 1966.

18. This question may be viewed from a different angle also. The authority under the Business Rules to grant mining lease is the Minister and not the Secretary or any other person who deals with the file for the despatch of the order passed by the State Government. In this case the State Government granted the lease in favour of the petitioner within the time prescribed under Rule 24 of the rules. If for one reason or the other the other functionaries in the Secretariat, who are not the sanctioning authority, delayed the despatch of the sanction accorded by the competent authority under the Business Rules, then it cannot be said that the State Government did not want to grant lease to the petitioner. When once the sanction accorded by the Minister is communicated to the petitioner, it became final and effective and it shall be taken that the order which became effective was the order issued on 27th of July, 1966, which was well within time and not any other order which might have been passed beyond the period of nine months. If the argument of learned counsel for the respondents is accepted, then it would mean that the authority of the Minister to sanction the lease is rendered nugatory by causing delay deliberately or otherwise in the process of drawing a formal order or despatch the same. In my opinion, therefore, the order passed by the Central Government that it was a case of deemed rejection, is erroneous in law and on that ground the revision application filed by M/s. Bhopal Mining Works cannot be accepted.

19. While disposing of the revision application, the Central Government has dealt with the application of M/s. Bhopal Mining Works on merits also. Under Section 11 of the Act, while disposing of the applications for the grant of mining lease filed on the same day, the authority is required to compare the preferential rights of the applicants. The Central Government has considered the preferential rights of M/s. Bhopal Mining Works and it has observed :

'M/s. Bhopal Mining Works is the only one out of the several original applicants which is in a position itself to utilise the mica produced out of the area, because it is the owner of a factory which produces mica insulating bricks to the extent of 4 lakh bricks per year. It has also been stated by revision petitioner, and the Central Government has no reason to question the accuracy of this statement, that this factory supplies the steel plants with the mica insulating bricks.

In the circumstances of the case and in the interests of natural justice, the State Government should pass orders granting mining leases covering the entire areas applied for by petitioner company (M/s. Bhopal Mining Works) in its application dated 28-10-1965 for 500 acres in village Jhumpura and 28-10-1965 for 250 acres in village Seorathi In consequence the State Government should pass orders rejecting all the other applications for these areas.'

20. While exercising its revisional jurisdiction, the Central Government, after weighing the merits and demerits of different applicants, came to the conclusion that M/s. Bhopal Mining Works must get a preferential treatment over other applicants because it consumes the mica in producing insulating bricks and, therefore, the area applied for must be given to M/s. Bhopal Mining Works by the State Government. If the Central Government so wished, it could pass the order in favour of M/s. Bhopal Mining Works, but instead of doing so a direction was given to the State Government to grant the said area for which M/s. Bhopal Mining Works had applied for and the applications of other applicants for that area were rejected.

21. In my opinion, the Central Government was competent while dealing with the revision application of M/s. Bhopal Mining Works to pass the aforesaid order and since I do not find any illegality in the order passed by the Central Government in considering the merits of the different applicants, I while exercising the extraordinary jurisdiction, would not like to interfere with the order of the Central Government to the extent to which it deals with the merits of the application of M/s. Bhopal Mining Works. Learned counsel for the petitioner could not point out any illegality in the order passed by the Central Government on that account.

22. For the reasons mentioned above, the writ petition fails and it is hereby dismissed. No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //