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2006 DIGILAW 530 (ORI)

Sawarmal Agarwal v. State of Orissa

2006-07-17

M.M.DAS

body2006
ORDER M. M. DAS, J. : Though this writ petition was listed for admission as the parties have already exchanged their respective affidavits, with consent of both the parties, the matter was heard finally. 2. The petitioner was granted a mining lease for a period of 20 years with effect from 7.12.1982 for mining Quartz and Felspar from the lease area as per the provisions of the Mineral Concessions Rules, 1960 (hereinafter referred to as ‘the Rules’). The petitioner before one year of the expiry of the said lease, filed an application for renewal of the lease along with proof of payment of the renewal fees, in Form ‘J’ as prescribed under the Rules. It appears that by the order dated 1.2.2006 under Annex¬ure-3, passed by the Under Secretary to Government, the renewal application of the petitioner has been rejected. Being aggrieved by the said order, the petitioner has approached this Court under Article 226 of the Constitution in the present writ petition. 3. A counter affidavit has been filed on behalf of opp.party No.1-State of Orissa. 4. Mr. Sanjit Mohanty, learned senior counsel appearing on behalf of the petitioner drawing our attention to the provisions of Rule 26 of the Rules submitted that it would be apparent from the impugned order under Annexure-3 that the Under Secretary to Government has recorded that the application for renewal was deficient of certain documents as mentioned in the said order, but nevertheless no notice whatsoever in accordance with Rule 26(3) of the Rules was issued to the petitioner to make good the deficiency in the application by producing the said documents before the concerned authorities. He further submits that even though in the impugned order, it is stated that notice under Rule 26(1) of the Rules was issued to the petitioner, affording him with an opportunity of being heard, but as a matter of fact, no such notice of hearing was ever issued to the petitioner. By our order dated 4.7.2006, while directing the mater to be listed on 11.7.2006, learned counsel for the State was directed to produce the records on that date. When the matter was taken up for hear¬ing, the learned Addl.Government Advocate produced the connected records for refusal of the Court. By our order dated 4.7.2006, while directing the mater to be listed on 11.7.2006, learned counsel for the State was directed to produce the records on that date. When the matter was taken up for hear¬ing, the learned Addl.Government Advocate produced the connected records for refusal of the Court. On verifying the same, we found that though the office copy of the notice/letter dated 5.12.2005 intimating the petitioner that as his application is deficient in respect of certain documents as mentioned therein, the same is liable to be rejected and he is required to appear before the Additional Secretary to Government, Department of Steel and Mines on 10.1.2006 at 4.00 P.M. to state his case, but no document/acknowledgement is available in the said record evidenc¬ing that the said letter/notice dated 5.12.2005 was served on the petitioner. No doubt, at the top of the said letter “U.C.P.” is indicated which according to the learned Addl.Government Advo¬cate, is mentioned, as the said letter was sent “Under Certifi¬cate Posting”. However, no certificate of the Post Office showing despatch of the said letter is also available in the said record. 5. For convenience Rule 26 of the said Rules is quoted hereunder : “Refusal of application for grant and renewal of mining lease :- (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 mining lease over the whole or part of the area applied for (No.1 (22)/63-MII, dated 18.7.63). (2) An application for the grant or renewal of a mining lease made under Rule 22 or Rule 24A, as the case may be, shall not be refused by the State Government only on the ground that Form I or Form J, as the case may be, is not complete in all material particulars, or is not accompanied by the documents referred to in sub-clauses (d), (d) (f) (g) and (h) of clause (i) of sub-rule 22. (3) 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 document, without delay and in any case not later than thirty days from the date of receipt of the said notice by the appli¬cant.” 6. A bare reading of the above Rule unambiguously indi¬cates that under Rule 26(3) of the Rules, if the application for renewal is found to be incomplete in all material particulars or is not accompanied by the required documents, a notice is mandat¬ed to be issued to the applicant to supply the omission or, as the case may be, to furnish the required documents but not later than thirty days from the date of receipt of such notice by the applicant. 7. Rule 26(1) of the Rules also contemplates that an order refusing to grant or renew a mining lease can only be made after giving an opportunity to the applicant of being heard and reasons are also required to be recorded in writing which also shall be communicated to the applicant. 8. We are, therefore, of the view that if an application for renewal of mining lease is made within the stipulated time before expiry of the lease and the said application is found to be not accompanied by any document or documents which are re¬quired, the State Government is required to issue a notice to the applicant for furnishing the said documents. Therefore, if the Government intends to reject the application, it can do so only after opportunity of being heard is given to the applicant and by passing a reasoned order and thereafter communicating the same to the applicant. From the facts of the present case, it is clear that neither the provisions of Rule 26(3) nor the Rule 26(1) of the Rules has been complied with by the Government. 9. We, therefore, have no hesitation in quashing the im¬pugned order under Annexure-3 by which the renewal application of the applicant was rejected and we accordingly quash the said order. 9. We, therefore, have no hesitation in quashing the im¬pugned order under Annexure-3 by which the renewal application of the applicant was rejected and we accordingly quash the said order. Now, since from the counter affidavit of the opp.party-State, the petitioner has come to know regarding particulars of the documents which are wanting in his application for renewal made on 5.12.2001, we direct that he shall produce the said documents before the concerned authority of the State within a period of four weeks from today and on production of such docu¬ments, the competent authority under the Rules shall issue notice to the petitioner by registered post with A.D. intimating him the date on which is required to be present for the purpose of hear¬ing. After affording such opportunity of hearing to the petition¬er, the competent authority of the State shall pass appropriate order on the application of the petitioner for renewal, as per law. The application for renewal shall be disposed of within a period of six weeks from the date of filing of the required docu¬ments by the applicant before the said competent authority of the State. The writ petition is disposed of accordingly. S. B. ROY, C.J. I agree. Petition disposed of.