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2005 DIGILAW 516 (UTT)

Smt. Donita and otherss v. State of Uttaranchal

2005-12-07

CYRIAC JOSEPH, RAJESH TANDON

body2005
JUDGEMENT [Per: Hon'ble Cyriac Joseph, C.J. (Oral)] 1. In the year 1995, the petitioners applied to the Government of Uttar Pradesh for grant of prospecting licences under the Mineral Concession Rules, 1960 (hereinafter referred to as 'the Rules'). Before any decision was taken on their applications, the State of Uttaranchal was created w.e.f. 09-11-2000. After the creation of the State of Uttaranchal also, no decision on their applications was communicated to the petitioners. When the petitioners contacted the second respondent - District Magistrate, Bageshwar - they were informed that, as per Annexure 1 order dated 29-12-2004, the Government of Uttaranchal had rejected the applications. A copy of the said Government Order dated 29-12-2004 was supplied to the petitioners by the District Magistrate. As per Annexure 1 order dated 29-12-2004, the District Magistrate, Bageshwar was informed that the Government had decided to refuse the applications for grant of prospecting licences in respect of an area of 8.38 Sq. Kms. in Village Kunoli Sunera, District Bageshwar and the District Magistrate was directed that the said area be notified Invltin9 applications in accordance with the Rules. However, no reason was stated in Annexure 1 order for rejecting the applications. On the basis of Annexure 1 Government Order, the second respondent issued Annexure 2 notification dated 22-01-2005 inviting fresh applications for grant of prospecting licence in respect of the above-mentioned area. In the said notification, though it was stated that the earlier applications had been rejected by the Government,' the reason for such rejection was not indicated. In such circumstances, the petitioners filed this writ petition praying for quashing Annexures 1 and 2 and for directing respondent No. 1 to grant the prospecting licences to the petitioners in respect of an area of 8.38 Sq. Kms in Village Kunoli Sunera, District Bageshwar. They also prayed for restraining the respondents from granting prospecting licence to persons who applied pursuant to Annexure 2 notification. 2. The writ petition was admitted on 26-07-2005. Though the petitioners had filed Civil Misc. Application No. 4750 of 2005 seeking stay of operation of Annexures 1 and 2 and an order restraining the respondents from granting prospecting licence to persons other than the petitioners in respect of an area of 8.38 Sq. Kms. in Village Kunoli Sunera, the interim relief was not granted. Though the petitioners had filed Civil Misc. Application No. 4750 of 2005 seeking stay of operation of Annexures 1 and 2 and an order restraining the respondents from granting prospecting licence to persons other than the petitioners in respect of an area of 8.38 Sq. Kms. in Village Kunoli Sunera, the interim relief was not granted. However; it was directed that the grant of licence to persons other than those who had applied pursuant to the first notification shall tie subject to further orders in the case. . 3. According to the petitioners, Annexure 1 order is liable to be quashed on the ground that the applications of the petitioners were rejected against the provisions contained in the Rules. It is also contended that once Annexure 1 is quashed, the consequential notification (Annexure 2) and all further proceedings pursuant to the said notification are liable to be quashed. It is specifically contended that an application for grant of prospecting licence can be rejected under Rule 12 of the Rules only after giving an opportunity of being heard to the applicants and after recording in writing the reasons for the rejection. It is further pointed out that the refusal of the application should be communicated to the applicants. According to the petitioners, no reason has been assigned by the Government for rejecting the applications of the petitioners and the refusal was not even communicated to the petitioners. The petitioners came to know of Annexure 1 order only when they made enquiries with the second respondent. It is pointed out that Annexure 1 order is not marked to any of the petitioners. 4. A counter affidavit has been filed on behalf of the first respondent by the Secretary, Industrial Development, Government of Uttaranchal. It is admitted that the petitioners had applied for grant of prospecting licence in respect of an area of 8.38 Sq. Kms. in Village Kunoli Sunera in District Bageshwar under the Mineral Concession Rules, 1960. But it is stated that the applications were not in accordance with the Rules, in as much as, the applications were not accompanied by the necessary informations and documents. In order to give an opportunity to remove the defects, detailed notices dated 19-10-2001 were sent to the petitioners from the office of the District Magistrate, Bageshwar. Copies of the said notices are produced as Annexures CAl to CA4. In order to give an opportunity to remove the defects, detailed notices dated 19-10-2001 were sent to the petitioners from the office of the District Magistrate, Bageshwar. Copies of the said notices are produced as Annexures CAl to CA4. The said notices were sent by registered post. But none of the petitioners responded to the notice and furnished the required informations and documents for a long period. Therefore, the District Magistrate, Bageshwar, vide his letter dated 18-02-2002, recommended rejection of the applications of the petitioners on account of non-compliance of the notices dated 19-10-2001. Again, vide his letter dated 19-10-2004, the District Magistrate informed Government that the petitioners had not submitted the required documents in support of their applications for grant of prospecting licence and, as such, recommendation had already been sent to the Government to reject their applications. Accepting the recommendation of the District Magistrate, the State Government rejected the applications of the petitioners as per Annexure 1 order dated 29-12-2004. 'It is contended in the counter affidavit that the rejection of the applications was justified in view of the failure of the petitioners to comply with the directions contained in Annexures CA1 to CA4 notices sent from the office of the District Magistrate. 5. A rejoinder affidavit has been filed by petitioner NO.4 on behalf of ali the petitioners stating that the petitioners .had not received Annexures CA1 to CA4 notices stated to have been sent from the office of the District Magistrate, Bageshwar. 6.In view of the statement of the petitioners that they had not received any notice from the second respondent, the respondents were directed to produce the relevant files. The files produced by the learn Standing Counsel show that the notices were sent to the petitioners by registered post on 20-11-2001. But there is no record to show that the notices were actually served on the petitioners. The contention of the learned Standing Counsel is that when the notices were actually sent by registered post and when they were not received back undelivered, the presumption is that they were delivered to the addressees. 7.We have heard Mr. Paresh Tripathi, learned counsel for the petitioners and Mr. K.P. Upadhyaya, learned Standing Counsel for the Government of Uttaranchal. The contention of the learned Standing Counsel is that when the notices were actually sent by registered post and when they were not received back undelivered, the presumption is that they were delivered to the addressees. 7.We have heard Mr. Paresh Tripathi, learned counsel for the petitioners and Mr. K.P. Upadhyaya, learned Standing Counsel for the Government of Uttaranchal. 8.Rule 9 of the Mineral Concession Rules, 1960 provides that an application for a prospecting licence in respect of land in which the minerals vest in Government shall be made to the State Government in Form B through such officer or authority as the State Government may specify in that behalf. It is not disputed that the District Magistrate has been specified by the Government as the officer or authority through whom an application for a prospecting licence has to be submitted. Admittedly, the petitioners submitted the application in Form B through the second respondent District Magistrate, Bageshwar. 9. Rule 12 of the Mineral Concession Rules, 1960 reads as follows : "12. Refusal of application for a prospecting licence. - (1) The State Government 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 prospecting licence over the whole or part of the area applied for. (1A) An application for the grant or renewal of a prospecting licence made under rule 9 shall not be refused by the State Government only on the ground that Form B or Form E, as the case may be, is not complete in ali material particulars, or is not accompanied, by the documents referred to in clauses (d), (e), (f) and (g) of sub-rule (2) of the said rule. (1B) Where it appears that the application is not complete in all material particulars or is not accompanied by the required documents, the State Government shall, by notice, require the applicant to supply the omission or, as the case may be, furnish the documents without delay and in any case not later than thirty days from the date of receipt of the said notice by the applicant. (2) An application for the grant of a prospecting licence shall not be refused on the ground only that, in the opinion of the State Government, a mining lease should be granted for the area for which the application for a prospecting licence has been made : . Provided that where applications for the grant of prospecting licence and applications for the grant of mining lease in respect of the same area are received on the same date or on different dates within a period of thirty days, the applications for the grant of mining lease shall, if the area was previously held and worked under a mining lease, be disposed of before the application for the grant of prospecting licence are considered : Provided further that the applications received for grant of prospecting licence shall be liable to be considered only if they have not been already disposed of." It is clear from Sub-Rule (16) of Rule 12 that where it appears that the application is not complete in all material particulars or is not accompanied by the required documents, the State Government shall, by notice, require the applicant to supply the omission or, as the case may be, furnish the documents without delay, and in any case, not later' than 30 days from the date of receipt of the said notice by the applicant. Obviously, Annexures CA1 toCA4 notices were issued from the office of the second respondent in the light of Sub-Rule (16) of Rule 12. Therefore, the petitioners were liable to comply with the directions in the said notices. Admittedly, the petitioners did not comply with those directions. The excuse given by the petitioners is that they had not received the said notices. As rightly pointed out by the learned Standing Counsel, when the notice was actually sent by registered post and it was not received back undelivered, it has to be presumed that it was delivered to the addressee by the Postal Department. However, we take note of the assertion made by the petitioners in the rejoinder affidavit that the notices were not actually delivered to them. We also take note of the fact that there is no record with the respondents to show that the notices were actually delivered to the petitioners. 10. However, we take note of the assertion made by the petitioners in the rejoinder affidavit that the notices were not actually delivered to them. We also take note of the fact that there is no record with the respondents to show that the notices were actually delivered to the petitioners. 10. Even if the petitioners had not complied with the directions in Annexure CA1 to CA4 notices, the second respondent could only bring the matter to the notice of the Government so that the Government could take appropriate decision on the applications. According to the averments in the counter affidavit, the fact that the petitioners did not comply with the directions in the notices issued to them, was brought to the notice of the Government and thereafter, the Government issued Annexure 1 order informing the second respondent that the Government decided to reject the applications. 11. According to Sub-Rule 1 of Rule 12 of the Mineral Concession Rules, 1960, the State Government cannot refuse to grant' prospecting 1icence, unless an opportunity of being heard is given to. the applicant and the reasons for rejecting the application are recorded in writing. It is also mandatory that such refusal of the application should be communicated to the applicant. From the admitted facts in this case, it is clear that the rejection of the applications of the petitioners was in violation of Sub-Rule 1 of Rule 12. It is not disputed that an opportunity of being heard was not given to the petitioners before deciding to refuse the licence. It is also clear from Annexure 1 communication and Annexure 2 notification that no reason was assigned for rejection of the applications. It is also not disputed that the rejection of the applications was not communicated to the petitioners. In such circumstances, Annexure 1 order is liable to be quashed. Once Annexure 1 order is quashed, the consequential notification (Annexure 2), issued on the basis of Annexure 1 order, also is liable to be quashed. 12. In the above circumstances, the writ petition is disposed of in the following terms : i Annexure 1 order dated 29-12-2004' is quashed. ii.Though the consequential notification (Annexure 2) also is liable to be quashed, we decline to quash the said notification, as the persons who submitted applications pursuant to the said notification are not parties to this writ petition. In the above circumstances, the writ petition is disposed of in the following terms : i Annexure 1 order dated 29-12-2004' is quashed. ii.Though the consequential notification (Annexure 2) also is liable to be quashed, we decline to quash the said notification, as the persons who submitted applications pursuant to the said notification are not parties to this writ petition. Since it Is submitted that no prospecting licence was issued to any applicant who submitted application pursuant to Annexure 2 notification, it is directed that the applications submitted pursuant to Annexure 2 notification shall also be considered along with the applications submitted by the petitioners. But, if the Government decides to restrict the number of prospecting licences to be issued In respect of the area concerned, the applications sublJ1itted pursuant to Annexure 2 notification shall be considered only after considering the applications of the petitioners. iii. Since, there is serious dispute as to whether Annexures CA1 to CA4 notices were delivered to the petitioners, the petitioners shall be given a period of one month from today, to ,comply with the said notices and to rectify the defects. iv. The applications of the petitioners and the applications received pursuant to Annexure 2 notification shall be considered by the Government in accordance with law and in the light of the directions given above and appropriate orders shall be passed as expeditiously as possible and at any rate, within a period of three months from today. v. No prospecting licence shall be issued in respect of the area concerned before considering and disposing of the applications of the petitioners as directed above.