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S.C. Dogra and Etc. Vs. State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. No. 276 to 278 of 1981
Judge
Reported inAIR1984HP29
ActsHimachal Minor Minerals (Concession) Revised Rules, 1971 - Rule 24; ;Constitution of India - Articles 14 and 226; ;Mines and Minerals (Regulations and Development) Act, 1957 - Sections 15 and 30
AppellantS.C. Dogra and Etc.
RespondentState of Himachal Pradesh and ors.
Appellant Advocate H.S. Doabia,; K.D. Sood and; P. Malhotra, Advs.
Respondent Advocate P.N. Nag, Adv. General,; M.S. Guleria, Asstt. Adv. General and;
DispositionPetition dismissed
Cases ReferredChintaman Rao v. State of Madhya Pradesh
Excerpt:
- .....have a right of being heard provided they have some right and that right of their is snatched. in case a short term permit is granted to the petitioners and for violation of any of the conditions the same is to be cancelled, then in that case the petitioners can claim that they have a right of being heard because they are vested with a right by virtue of the grant of short termpermit for the fixed period or for a fixed quantity of quarrying material. in the present writ petitions, the petitioners were mere applicants and their applications were never accepted for the reasons recorded by director and, therefore,, there is no infringement of any principle of natural justice,29. no other point was urged before me.30. as a result of the above discussion, the present writ petitions are.....
Judgment:
ORDER

V.P. Gupta, J.

1. These three writ petitions can conveniently be disposed of by a single judgment, as questions of facts and law involved in these writ petitions are similar.

2. For understanding the facts and the matters in controversy the facts of Civil Writ Petition No. 276 of 1981 are being stated.

The petitioners are carrying on the business of mining operations, in the name and style 'M/s. Dogra Stone Crusher' in village Chhakdal. District Simla. They were getting short term permits under Rule 24 of the Himachal Minor Minerals (Concession) Revised Rules. 1971 hereinafter called 'Rules') and were depositing royalty, etc. for this purpose.

3. The petitioners applied for a short term permit on 22nd Sept. 1981 but this permit was not issued. The petitioners now allege that the land upon which they were carrying on business is the ownership of their father and uncle, who have allowed the petitioners to occupy the land for working mining operations. Under Article 300A of the Constitution the owners cannot be deprived of their rights in the minerals or in the lands. They further allege that short term permits have been refused on the instructions of the Government because the Government decided to close all stone crushers and quarries working in Saniauli. Dhalli and Shoghi, and on all National and State Highways. A letter, dated 29th Sept. 1981 was issued by the Assistant Commissioner, Municipal Corporation, Simla, conveying the decision of the Government. The petitioners have challenged the orders of the Government chiming the same to be null and void and also violative of Articles 14 and 19 ofthe Constitution. It is further alleged that the executive orders or the instructions have no value and that Rules 24 to 27 of the Rules are not applicable. The validity of Rule 24 of the Rules is also challenged.

4. During the pendency of the writ petitions, vide orders, dt. 18th Mar. 1983, the Government rejected the applications of the petitioners for short term permits. The grounds for rejection are that mining operations in Dhalli and Shoghi are not in public interest as it causes damage to road as well as ecological imbalance and also it prevents diversion of traffic from Card Road which is already congested.

5. The petitioners have now challenged this order also on the ground that the same is discriminatory and is violative of Articles 14 and 19 of the Constitution. The petitioners have stated that they are suffering a great loss and injustice has been done to them.

6. In Civil Writ Petitions 277 of 1981 and 278 of 1981 similar allegations are made by the petitioners.

7. Reply to the petitions was filed by the respondents. The respondents denied the allegations of the petitioners and averred that the petitioners have no right to get any mining permit. It is alleged that permit was rightly refused to the petitioners for the reasons mentioned in the order, and that the order refusing short term permit to the petitioners is legal and valid.

8. I have heard Shri H. S. Doabia and Shri K. D. Sood counsel for the petitioners and Shri p. N. Nag, Advocate General, Sim M. S. Guleria. Assistant Advocate-General, and Shri M. L. Chauhan. Law Officer, for the respondents.

9. The learned counsel appearing for the petitioners contends that Rule 24 of the Rules is ultra vires and that the petitioners have been refused short term permits without sufficient grounds. He also contends that the order refusing permits is discriminatory. It is vehemently contended that the respondents have no right to pick and choose. The order refusing the permits is alleged to be violative of the provisions of Articles 14, 19 and 300A of the Constitution.

10. The learned counsel appearing for the respondents contends that the orders refusing permits were rightly passed. It is contended that the petitioners have a right of revision underSection 30 of the Mines and Minerals (Regulation and Development) Act, 1957. (hereinafter called the 'Act') and that the writ remedy is not the proper remedy. The learned counsel further contends that there is no discrimination and the persons who have been granted short term permits for mining purposes are not similarly located.

11. The relevant records were also produced in Court.

12. I have considered the contentions of the learned counsel for the parties.

13. The Central Government promulgated Mines and Minerals (Regulation and Development) Act. 1957 (Act no. 67 of 1957) for regulation of mines and development of minerals. Section 4 of the Act provides that no person shall undertake any prospecting or mining operations in any area except under and in accordance with the terms and conditions of a licence or a lease granted under the Act. Under Section 15 of the Act, the State Government is empowered to make rules for regulating the grant of licences, leases in respect of minor minerals and for purposes connected therewith.

14. The Himachal Pradesh Government promulgated the Rules under Section 15 of the Act. Chap. II of the Rules deals with grant of mining leases/contracts/short term permits in respect of land in which the minerals vest in the Government. Rules 5 to 23 relate to grant of mining leases, Rules 24 to 27 relate to grant of short term permits and Rules 28 to 33 relate to grant of contracts. The present dispute is for the grant of a short term permit and therefore, only Rules 24 to 27 are relevant. Rule 24 reads as follows:

'24. (i) Except where otherwise provided in these rules, the Director or any other officer, authorised by him in this behalf may grant permit in form 'J' from any specified land not leased to anybody within the limits of the Himachal Pradesh for any minor mineral not exceeding the quantity as may be specified under any one permit on payment of such royalty as shown in the First Schedule to these rules:

Provided that the Director may refuse to grant such permits for reasons to be recorded in writing.

(ii) Restrictions on grant of mining permits:-- No mining permit shall be granted to a person who is not an Indian National for a period of more than six months.'

Short term permit is defined in Rule 2 (i) as :

'Short term permit' means a permit granted by the Director to extract a certain quantity of mineral for the period specified in the permit.' Under Rule 2 (e) 'Director' means the Director of Industries, Himachal pradesh.

15. An application for a short term permit is to be filed under Rule 35 and a permit can be granted on the conditions mentioned in Rule 26. Under Rule 27 in case of breach of any of the conditions, subject to which the permit is granted, the Director or the authority issuing the permit, may cancel it. On cancellation of the permit, the quarried materials lying on the land from which they are extracted shall become the absolute property of the Government.

16. Now the petitioners were being granted short term permits from time to time for specified quantities of minor minerals and from a particular portion of the land situate on Dhalli-Shoghi Road in Simla. The records of the Government show that it was reported to the Government that this road was badly damaged due to the crushing operations carried out on the site of the road. After considering the various facts and circumstances, it was decided by the Government in August. 1981, that all stone crushers functioning on the National Highway between Simla-Kalka and Sanjauli-Shoghi Road and which are causing damage to road as well as the land be shifted forthwith. It was also found that some illegal extraction was being done. A meeting was held on 18th Sept. 1981 and it was decided in this meeting that no short term permit be granted along National-cum-State Highways and crushers along Dhalli-Batta Kuffar Road in Simla District. As a re-suit of this decision the petitioners were not granted short term permits by the Director of Industries and their applications were kept pending. The petitioners filed these writ petitions challenging the decision of the Government because their applications for grant of short term permits were not deckled.

17. During the pendency of the writ petitions, the respondents were directed to give a decision upon the applications of the petitioners for grant of short term permits. The respondents ultimately rejected the applications of the petitioners on 18th Mar. 1983 (i. e. during the pendency of the writ petitions) and reasonsfor rejecting the applications were recorded.

18. The records show that the Assistant Geologist of Himachal Pradesh State submitted his report after inspection of various spots. He reported that Dhalli-Shoghi Road had been damaged due to crushers. He further stated that the quarrying operations had not been canned in a systematic way and the slopes were very steep and most of them were even absolutely vertical, which was dangerous for quarrying. He further stated that the quarrying material was being wasted along with slopes.

19. The Executive Engineer, Simla Division, H. P. P. W. D. also gave his report on 31st Oct. 1982 (Annex. RA). He stated that the crushers should be removed from the present sites in the larger interest of public safety and the condition of the road was deplorable. He also stated that the road was often kept blocked, malba was dumped on the road surface as a result of which the road became narrow and it was difficult and unsafe to pass vehicles in this portion of the road.

20. The Director in his order, dated 18th Mar. 1983 gave the following reasons for rejecting the applications of the petitioners for short term permits:

'That mining operations on Dhalli-Shoghi Road are not in public interest as it causes damage to road as well as ecological imbalance and also prevents diversion of traffic from Card Road which is already congested.'

21. Now the present proceedings arein the nature of quasi-judicial proceedings. Hence the action of the respondents is liable to be struck down if it is arbitrary, unfair, unreasonable or discriminatory. In taking this view, I am supported by the observations in Ramana Dayaram Shetty v. International Airport Authority of India, (AIR 1979 SC 1628) (Para 11), where it is held:

'Today the Government, in a welfare State is the regulator and dispenser of special services and provider of a larger number of benefits, including jobs, contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefit, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to. Governments are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Government and local authorities. Licences are required before one can engage in many kinds of businesses or work. The power of giving licences means power to withholding them and this gives control to the Government or to the agent of Government on the lives of many people. Many individuals and many more businesses enjoy largess in the form of Government contracts. These contracts often resemble subsidies. It is impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of public land valuable for mining and ether purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence.'

It has been further observed (Para 11):

'The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or its sweet will.'

Further on it is held (Para 11):

'The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having gray hair and belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual.'

In para 12 of the same judgment it isheld:

'It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured byrational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory'.

22. Similarly, in Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, ((1980) 4 SCC 1) : (AIR 1980 SC 1992) it is held that the Court is bound to interfere where the action is shown to be arbitrary, capricious or mala fide and the administrative action must be reasonable and in public interest.

23. It is proved that the State of Himachal Pradesh adopted a policy decision in a meeting held in Sept 1981, that short term permits should not be granted. The counsel for the petitioners contends that the petitioners are the only victims and the action of the respondents in not granting short term permits to them is discriminatory. In para 13 (c) of the petition, the petitioners have givencertain names and it is alleged that these persons have been granted permits in spite of the policy decision. The respondents have not denied this averment specifically in the return. They have only stated that no favour has been shown to any contractor and necessary action would be taken whenever the competent authority feels that action is necessary in public interest. The counsel for the respondents, however, during the course of arguments contended that permits were not granted to any person on Dhalli-Shoghi Road. If that is so then the granting of permits to those persons mentioned in para 13 (c) of the petition on other roads cannot be a ground for giving any relief to the petitioners. The persons to whom permits were granted on some other roads are not similarly situated. To prove discrimination, the petitioners have to prove that the persons to whom permit's were granted are similarly situated. The petitioners could not bring to my notice any such case and could not show that any permits were granted to any person(s) on the Dhalli-Shoghi Road. In these circumstances it cannot be said the action of the Government is discriminatory.

24. The right of the Government to grant a short term permit is provided under Rule 24 (i) of the Rules. The Director can refuse a permit for reasons to be recorded in writing. There is also a restriction on the grant of a permit, to a person who is not an Indian National for a period of more than six months. Thus Rule 24 clearly provides that the Director or any other officer authorised say him has the authority to grant a short term permit but if the permit is to be refused then the Director can refuse the same for reasons to be recorded in writing. In the present case, the Director has recorded his reasons for refusing the permit and the perusal of the files show that these reasons are based upon the report of the Assistant State Geologist and the Executive Engineer of H.P.P.W.D. It is not for this Court to look into the matter as to whether the approach of the Director in accepting the report of the Geologist or the Executive Engineer is correct or not. The Director has the authority to apply his mind for granting or refusing a permit and if he has after considering the facts on the file taken a view which cannot be said to be absurd or based upon no evidence, then in that case this Court cannot interfere with that decision. This decision of the Director cannot be said to be unfair or unreasonable or arbitrary.

25. The learned counsel for the petitioners relied upon Dwarka Prasad Laxmi Narain v. State of U. P. (AIR 1954 SC 224) In this judgment the petitioners were carrying on the business of retail sellers of coal at Kanpur. On 14th February, 1953, the District Officers passed orders reducing and fixing prices of coal, coke etc. This executive order was challenged as being violative of Articles 14 and 19 of the Constitution. The State withdrew this order as it had no legislative sanction. Subsequently, on 10th July, 1953, the State promulgated by notification an order 'The Uttar Pradesh Coal Control Order' in exercise of powers conferred under Section 3 (2) of Essential Supplies Act 1946 read with the notified order of Government of India issued under Section 4 of the Act. The Uttar Pradesh Coal Control Order was challenged by petitioners on the grounds that its provisions vest an unfettered and unguided discretion in the licensing authority or State Coal Controller in the matter of granting or revoking licenses.in fixing prices of coal and imposing conditions on traders and these arbitrary powers could not be delegated by the concerned officers at their option to any person they like. It was observed (Para 6):

'A law or order, which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable. As has been held by this Court in 'Chintaman Rao v. State of Madhya Pradesh', AIR 1951 SC 118 (A) the phrase 'reasonable restriction' connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.

Legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, arid unless it strikes a proper balance between the freedom guaranteed under Article 19 (11 (g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in reasonableness.'

It was held that Clause 4 (31 of the Uttar Pradesh Coal Control Order was void because it imposed an unreasonable restriction upon the freedom of trade and business. The reasons for holding Clause 4 (3) as void were that the State Coal Controller had absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licence after recording reasons for the action. He could also delegate these powers to any person of his choice. Nc rules or guidelines had been issued on these matters. No higher authority could examine the propriety of the reasons and revise or review the decision of the subordinate officer. Hence the recording of reasons was for the subjective satisfaction of the licensing authority only and was not for furnishing any remedy to the aggrieved person. The facts of this case are distinguishable because in the present case the remedy of revision is available to the petitioners under Section 30 of the Act. which reads as follows:

'30. Power of revision of Central Government. The Central Government may of its own motion or on application made within the prescribed time by an aggrieved party, revise any order made by a State Government or otherauthority in exercise of the powers conferred on it by or under this Act'

Thus, it cannot be said that _ there is an absolute discretion with the Director to grant or refuse a short permit and Rule 24 of the Rules cannot be said to be void. Further, the scrutiny of the records produced by the respondents clearly show that the applications of the petitioners were rejected after taking into consideration the larger interests of the public.

26. It is also contended that no appeal is provided against the order of the Director and an appeal is only provided under Rule 47 in the case of leases.

It is true that an appeal is not provided but at the same time the order of the Director can be revised by the Central Government by wav of a revision under Section 30 of the Act.

In any case, this contention is not material because even jf a remedy is available by appeal, etc. still this Court is competent to look into the correctness or the validity of the order under its extraordinary powers.

27. The next contention is that the petitioners cannot be deprived of their rights in the minerals as their relations are the owners of the land from which the minerals are to be quarried and Article 300A of the Constitution is relied on for this contention. This contention of the learned counsel for the petitioners cannot be accepted in view of the fact that the petitioners or the owners are not being deprived of their property and the Act only provides a procedure for the regulation of mines and development of minerals. Further. Article 300A of the Constitution only provides that a person cannot be deprived of his property except by authority of law.

28. Another argument advanced is that the petitioners should have been heard before passing the orders regarding refusal to grant short term permits.

It is contended that the principles of natural justice have been ignored. This contention cannot be accepted.

The petitioners have a right of being heard provided they have some right and that right of their is snatched. In case a short term permit is granted to the petitioners and for violation of any of the conditions the same is to be cancelled, then in that case the petitioners can claim that they have a right of being heard because they are vested with a right by virtue of the grant of short termpermit for the fixed period or for a fixed quantity of quarrying material. In the present writ petitions, the petitioners were mere applicants and their applications were never accepted for the reasons recorded by Director and, therefore,, there is no infringement of any principle of natural justice,

29. No other point was urged before me.

30. As a result of the above discussion, the present writ petitions are dismissed without any order as to costs.


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