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1998 DIGILAW 410 (MP)

Balkrishna Gupta v. State of M. P.

1998-05-12

DIPAK MISRA

body1998
ORDER Dipak Misra, J. 1. In this writ petition preferred under Article 226 of the Constitution the petitoner has called in question the propriety of the order dated 21.8.91 passed vide Annexure-B by the State of Madhya Pradesh in the Department of Minerals Resources reducing the period of mining lease granted in favour of the Petitioner to 10 years and the order of affirmation dated 11.4.94 passed by the Respondent No. 3, the Central Government in revision preferred under Rule 54 of the Mineral Concession Rules, 1960 (hereinafter referred to as 'the Rules'). 2. The facts as have been uncurtained in the petition are that the Petitioner applied on 20.11.90 for grant of mining lease for extraction of soap stone and marble etc. over an area of 38.58 acres in Mauja Karmai Tahsil Majholi in the District of Sidhi for a period of 20 years. The State Government vide Annexure-B dated 21.8.91 granted the lease for the aforeasaid area for a period of 10 years without a renewal clause. Feeling aggrieved by the same the Petitioner preferred a revision before the Central Government seeking modification of the period of 10 years to 20 years and for inclusion of clause of renewal of mining lease. The Central Government invited the comments of the State Government but the State Government did not assign any reason about why the lease was granted for 10 years and not for 20 years. The Petitioner, as alleged in the petition, was called upon to submit his comments and he did so. The Central Government on consideration of the factual matrix rejected the revision vide Annexure-F on 11.4.94. It is averred in the petiton that the order passed by the Central Government is unsustainable as the revisional authority has not appreciated the contentions raised by the Petitioner with regard to the grant of an opportunity of being heard to the applicant by the State Government as enjoined under Sub Rule 1 of the Rule 26 of the Rules. 3. A counter affidavit has been filed by the Respondents Nos. 1 and 2 resisting the stand of the Petitioner and Contending, inter alia, that the State Government after taking into account the nature of mining operation and the area of mining has sanctioned lease for a period of 10 years and the Petitioner as a matter of right cannot claim renewal. 1 and 2 resisting the stand of the Petitioner and Contending, inter alia, that the State Government after taking into account the nature of mining operation and the area of mining has sanctioned lease for a period of 10 years and the Petitioner as a matter of right cannot claim renewal. It is also stated that the reasons for reducing the period has been given on the file and the same need not be stated in the order communicated to the Petitioner. It is also putforth that the Petitioner was not entitled to be heard in the matter. 4. A rejoinder has been filed by the Petitioner stating that under Section 8 of the Mines and Minerals (Regulation and Development) Act. 1957 the Petitioner is entitled to a renewal. Non affording of an opportunity of hearing has also been highlighted. The Petitioner has also referred to the decision dated 14.5.90 by the High Court of Delhi in writ petition No. 730/97 (Ram Chandra Bansal v. Central Government and another). 5. Mr. P.K. Jaiswal, learned Counsel for the Petitioner while referring to the various averments in the writ petition has contended that before reducing a period of lease as prayed for by the Petitioner an opportunity of hearing should have been afforded to the Petitioner and in absence of that there is noncompliance with the mandate of the Rules which makes the order pregnable in the eye of law. Mr. S.N. Khare, learned Government Advocate has referred to Rule 26 (1) of the Rules to contend that the State Government was under no obligation to hear the Petitioner as the Rule does not stipulate so when the period of lease is reduced. 6. The pivotal question that arises for determination is whether while reducing the period as prayed for requires an opportunity of hearing to be given to the Petitioner. Admittedly the Petitioner was not heard in the matter. As per the order passed by the Central Government under Annexure-F it appears that the Central Government has observed that the State Government in Its wisdom after considering all aspects of the case has come to the conclusion that a period of 10 years would be adequate and such decision is un-assailable. It is also observed that the Petitioner was not entitled to be heard as he was granted lease for the whole area. It is also observed that the Petitioner was not entitled to be heard as he was granted lease for the whole area. The reasoning of the Central Government is that If there is refusal of the lease or there is reduction in respect of the area the reasons are to be recorded in writing and are to be communicated to the applicant. At this juncture, it is worth while to reproduce the Rule 26 (1) of the Rules which reads as under: Refusal of application of grant and renewal of mining lease The State Governement may, after giving an opportunity of being heard and for reasons to be recorded in writing and communicated to the applicant, refuse to grant or renew a mining lease over the whole or part of the area applied for. (No. 1 (22) / 63-MII. dated 18.7.63). Placing reliance on the aforesaid Rule it is contended by Mr. Khare, learned Government Advocate that if the lease would have been refused over the whole area or a part of the area applied for then the question of giving an opportunity of being heard would have arisen. Submission of learned Government Advocate is that in absence of any other situation being provided for in the Rules nothing should be added. True it is, reduction of the period does not find place in the Rules but that does not necessarily mean that it gives an unbridled discretion to the State Government to fix the period. It is not open to the State Government in given case to fix the period of lease for one year or two years and in another case grant the lease for the maximum period. Reduction of period or the fixation of a period of the lease is an integral part of the lease and such a condition is inherent in the grant of lease in respect of the area in question. In this context, I may refer to the judgment of Delhi High Court in the case of Ram Chandra Bansal (supra). While interpreting unamended Rule 26 it was held therein that though there is no provision to record reasons in writing and communicate to the applicant when the period is reduced but that has to be read as a part of the mandate under Rule 26. While interpreting unamended Rule 26 it was held therein that though there is no provision to record reasons in writing and communicate to the applicant when the period is reduced but that has to be read as a part of the mandate under Rule 26. Their Lordships registered their view as under: The order of the State Government is subject to revision under Section 30 of the Act by the Central Government. If the order of the State of Government does not assign any reason for reduction of the period of lease it is not possible either for the applicant or for the Central Government to apply its mind for determination whether the order of the State Government is in accordance with law. If the reasons are not given the order can be said to be arbitrary and it may also be regarded unitelligible. The State Government in its sweet will may grant lease for one year or for 20 years, the maximum period permissible under the Act without assigning any reason. This does not appear to be permissible in law. In perticular cases there may be reasons for not granting the lease for the period, applied for but those reasons must be disclosed so that the revisional authority i.e. the Central Government may determine whether the order of the State Government is in accordance with law or not. Under Rule 26 as set out above if the State Government refused to grant lease for the whole or part of the area applied for, it has to record reasons In writing. There is no specific rule requiring giving of reasons for reducing the period of mining lease. It is contended on behalf of the Respondent that there is no provision either in the Act or in the rules for giving reasons for reducing the period of mining lease and therefore the State Government is not bound to give any reasons if the period of lease is reduced. We do not agree. Under Rule 26 of the Rules of 1960 reasons are not required to be given when the State Government refuses to grant lease for the whole or part of the area applied for. Similarly the State Government must give reasons for reducing the period of duration of lease. We do not agree. Under Rule 26 of the Rules of 1960 reasons are not required to be given when the State Government refuses to grant lease for the whole or part of the area applied for. Similarly the State Government must give reasons for reducing the period of duration of lease. Principles of natural justice and fair procedure demand that if a person makes an application for the grant of renewal of mining lease for the period admissible under the law and the authorities refuse to grant. lease for the period applied for, the applicant must be told the reasons for refusal. In the absence of reasons in the order refusing to grant the lease for the period applied for it is not possible for an applicant to challenge successfully the order of the State Government before the Central Government. Admittedly the impugned order of the State Government dated March 22, 1978 is a non-speaking order. It only mentions that the period of lease is 5 years and no reasons have been given for reducing the period although the period of lease applied for was 20 years. Thus the order of the State Government is liable to be quashed and similarly the order dated 16th February, 1978 of the Central Government holding that the State Government can grant lease for shorter period without giving any reason is liable to be quashed. It is to be noted that aforesaid order of Delhi High Court was challenged by the State Government in Special Leave Petition which was dismissed. This fact finds place in the order passed in Revision Application No. 6(40) /93-RC/11 dated 9.6.94 by the Central Government. 7. Though aforesaid view was expressed by Delhi High Court in the Context of recording of reasons and communication to the applicant with regard to the reduction of period, I am of the considered view that the principles laid down therein would be applicable on all fours to the concept of grant of reasonable opportunity of being heard. It is to be noted here that by amendment dated 10.2.87 "after giving an opportunity of being heard" was incorporated in Rule 26. The period of lease is an essential integral part of tease and, therefore, I am of the considered view that before reducing the period the applicant has to be given a reasonable opportunity of being heard. It is to be noted here that by amendment dated 10.2.87 "after giving an opportunity of being heard" was incorporated in Rule 26. The period of lease is an essential integral part of tease and, therefore, I am of the considered view that before reducing the period the applicant has to be given a reasonable opportunity of being heard. It is admitted that the Petitioner was not heard in the matter and the order was passed in which no reason was ascribed. The Central Government has erroneously opined that the Petitioner was not entitled to be heard in the matter as only the period was reduced. Thus, I am of the considered opinion that the order passed by the State Goverment confining the period of lease to 10 years, thereby reducing the period of lease as applied for, and the affirmation thereof by the Central Government, vide Annexures-B and F respectively, are lible to be set aside and accordingly I do so. 8. Resultantly, the writ petition succeds and the matter is remanded to State Government to reconsider the question of period of lease and to finalize it after giving an opportunity of hearing to the Petitioner. However, there shall be no order as to costs.