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2006 DIGILAW 676 (RAJ)

Kanwar Lal v. State of Rajasthan

2006-02-27

DINESH MAHESHWARI

body2006
Judgment Dinesh Maheshwari, J.- Although listed for admission and consideration of the application under Article 226 (3) of the Constitution of India, in view of a short question involved, at the request of learned Counsel for the parties, the matter was heard finally. 2.This writ petition has been submitted by the petitioner questioning the legality and propriety of the order dated 21.09.2005 (Annexure-6) passed by the Additional Director, Mines, Jodhpur Zone, Jodhpur vacating the stay order earlier granted in his appeal; and another other passed on the same day i.e., 21.09.2005 (Annexure 7) by the Superintending Mining Engineer, Jodhpur sanctioning a mining lease for an area of 4.5 hectares in favour of the Respondent No. 6. 3.Brief facts relevant for determination of the questions involved in this writ petition are that the petitioner Kanwarlal applied for grant of a mining lease for mineral granite at an area near village Redana, Tehsil, Shiv District Barmer on 23.07.2003; and according to the petitioner, his application was complete in all respects and he was, therefore, expecting grant of mining lease in his favour. On an area of 3.00 hectares of land situated just adjacent to the area applied for by the petitioner, Respondent No. 6 Smt. Rabiya Begum had moved an application for grant of mining lease on 04.06.2003. Under the Granite Policy of 2002 framed by the Government of Rajasthan in exercise of powers conferred on it by Rule 65A of the Rajasthan Minor Mineral Concession Rules, 1986 (MMCR), the size of plot/area for granite shall be 3.00 hectares. The petitioner has asserted that if both the applications, of the petitioner as well as of Respondent No. 6, had been considered by the Department in accordance with the provisions contained in the Granite Policy of 2002 objectively, there would have been no dispute and both the persons could get the mining lease in the area applied for, each measuring 3.00 hectares. 4.The petitioner has further averred that the dispute started when the Respondent No. 6 moved a revised application on 01.07.2003 extending the area from 3.00 hectares to 4.5 hectares, thereby covering and overlapping the area applied for by the petitioner. 4.The petitioner has further averred that the dispute started when the Respondent No. 6 moved a revised application on 01.07.2003 extending the area from 3.00 hectares to 4.5 hectares, thereby covering and overlapping the area applied for by the petitioner. The petitioner has contended that the original application of Respondent No. 6 (ML No. 42/03 dated 04.06.2003), filed at the first instance for an area of 3.00 hectares, was the only valid and legal application that could be considered by the Department and the revised application dated 01.07.2003 whereby Respondent No. 6 changed the entire position of area was not supported by law. However, instead of rejecting such revised application, the respondents issued a notice dated 111.2003 to the petitioner saying that his application overlaps the revised application of Smt. Rabiya Begum and he was asked to remedy the things, failing which, his application was threatened to be rejected. The petitioner allegedly met the respondents and explained the entire position but the respondents did not properly consider the position and by an order dated 30.10.2004 (Annexure-2) rejected his application for non-compliance of the notice dated 111.2003. 5.Being aggrieved against the order dated 30.10.2004, the petitioner preferred an appeal before the Additional Director, Mines, Jodhpur Zone, Jodhpur on 23.07.2005 wherein the notices were issued to the respondents and the record of the case was called for. According to the petitioner, when he came to know that even after service of notice of appeal, the application of Respondent No. 6 was being processed for grant, an application was made by him and thereupon, the learned Addl. Director granted interim stay order directing the respondents to maintain status quo in the matter by the order dated 01.09.2005 (Annexure-4) and fixed 28.09.2005 as the next date of hearing. .6.The petitioner has pointed out that after granting of stay order and fixing of date to 28.09.2005, an application was moved by the Respondent No. 6 Smt. Rabiya Begum for being impleaded as party-respondent; and the learned Addl. Director, by a letter dated 17.09.2005 (Annexure-5) addressed to the Counsel for the petitioner, preponed the date of hearing and directed the Counsel for the petitioner to remain present on 20.09.2005 for argument on the application for impleadment of party-respondent while enclosing therewith a copy of the application under Order 1 Rule 10 CPC; and such letter was received by the Counsel for the petitioner on 19.09.2005. Pursuant to the directions given in the aforesaid letter, the Counsel for the petitioner put-in appearance on 20.09.2005 and sought time for filing reply to the application for impleadment but, according to the petitioner, the learned Addl. Director, .without any reason, refused to grant any time for filing reply and heard on the application for impleadment on 20.09.2005; and not only ordered impleadment of Respondent No. 6 as party-respondent, but simultaneously vacated the stay order granted in the matter. 7.The petitioner has contended that on 20.09.2005, the matter was not at all to be heard on stay application but was to be heard for impleadment of party respondent only; and the things were done purposely because the matter was being processed fast in favour of the Respondent No. 6; and while the stay order was vacated by the learned Addl. Director on 21.09.2005 (Annexure-6), on the very same day i.e., 21.09.2005, the order sanctioning the mining lease in favour of Respondent No. 6 was issued by the Superintending Mining Engineer, a copy whereof has been submitted as Annexure-7. 8.The petitioner has submitted this writ petition assailing the orders dated 21.09.2005 (Annexure-6 and Annexure-7) with the submissions that the impugned orders are illegal, arbitrary, unreasonable, discriminatory and against all cannons of justice and that the learned Addl. Director has proceeded in a hot-haste and unreasonable manner. The petitioner has questioned the legality and validity of the procedure adopted by the Addl. Director in preponing the date of hearing and granting the application for impleadment and simultaneously vacating the stay order without there being any arguments on the stay application. Director has proceeded in a hot-haste and unreasonable manner. The petitioner has questioned the legality and validity of the procedure adopted by the Addl. Director in preponing the date of hearing and granting the application for impleadment and simultaneously vacating the stay order without there being any arguments on the stay application. 9.The petitioner has further contended that the revised application filed by the Respondent No. 6 for grant of mining lease could not be a legal and valid application, inasmuch as, there is no provision either in MMCR or even in the Granite Policy for submitting/accepting any revised map or revised application; that the apprehension of the petitioner that things were moving fast one way in favour of Respondent No. 6 came true when on the very same date i.e., 21.09.2005 the order sanctioning mining lease was issued in favour of the Respondent No. 6; that the order of sanction thus made was totally illegal and arbitrary; that unless and until validity of the application of the petitioner and the application of Respondent No. 6 was decided on merits for which the appeal was pending, order sanctioning the mining lease in favour of the Respondent No. 6 could not have been passed. 10.The petitioner has further contended that passing of such order of sanction in favour of Respondent No. 6 would frustrate his claim and even render his appeal meaningless; that even otherwise, the sanction of area of 4.5 hectares in favour of Respondent No. 6 on her application dated 04.06.2003 was totally illegal, inasmuch as by the application dated 04.06.2005, the area applied for by the Respondent No. 6 was only 3.00 hectares and not 4.5 hectares. With the averments aforesaid, the petitioner has prayed that orders dated 21.09.2005 (Annexure-6 and Annexure-7) be quashed and set aside and the respondents may not give effect to the order dated 21.09.2005 (Annexure-7) sanctioning the lease in favour of the Respondent No. 6 and consider his application for grant of mining lease. 11.Noticing the fact situation of the present case and the contentions raised on behalf of the petitioner, this Court issued notice on 28.09.2005 and effect and operation of the orders Annexure-6 and Annexure-7 was stayed. 11.Noticing the fact situation of the present case and the contentions raised on behalf of the petitioner, this Court issued notice on 28.09.2005 and effect and operation of the orders Annexure-6 and Annexure-7 was stayed. 10.12.In response to the notice to show cause, the private Respondent No. 6 has submitted a short reply submitting that the petitioner has unnecessarily rushed to this Court against an interim order vacating the stay order by concealing material facts; that the writ petition was not maintainable for the petitioner having alternative remedy under Rule 47 of the MMCR; that the petitioner has made false averments in the appeal; that the appeal as hopelessly barred by time with no explanation for condonation of delay; that the order impugned had been passed after hearing the parties; and that the applications of the answering respondent for grant of mining lease and for extension of the area towards free side are much prior to the application of the petitioner and she holds priority in all respects. It has, therefore, been prayed that the petition may be dismissed. .13.The Respondents No. 1 to 5 have submitted in their reply that there were several deficiencies in the application submitted by the petitioner on 23.07.2003 whereas the Respondent No. 6 has submitted the application on 04.06.2003. Of Course, size of plot under the Granite Policy was fixed to 3.00 hectares but the Director, Mines and Geology has the jurisdiction and power to increase/decrease the size. It has been contended that though Respondent No. 6 submitted the .revised map on 01.07.2003 before submission of the application by the petitioner, however, even if she had not submitted the revised map on 01.07.2003 then too, the application submitted by the petitioner on 23.07.2003 was conflicting with the area of 3.00 hectares applied for by her and in that eventuality too, the petitioner could not have been granted the mining lease area applied for by him. Moreover, the petitioner was also informed by the letter dated 10.09.2003 as, also, registered A/D notice dated 111.2003 that the area applied for by him was conflicting with the area ML No. 42/2003 but no reply was submitted by the petitioner. Moreover, the petitioner was also informed by the letter dated 10.09.2003 as, also, registered A/D notice dated 111.2003 that the area applied for by him was conflicting with the area ML No. 42/2003 but no reply was submitted by the petitioner. 114.In relation to the averments concerning denial of adequate opportunity of hearing and validity of the procedure, it has been submitted that the Counsel for the petitioner did not ask for granting of time and argued the matter as appears from the order Annexure-6; that the Additional Director has given sufficient opportunity of hearing to both sides; that after hearing both the parties, the learned Additional Director vacated the stay order dated 01.09.2005 by his order dated 21.09.2005 (Annexure-6) that was perfectly legal and valid. It has further been contended that after vacating of the stay order, mining lease was granted to the Respondent No. 6 by the order dated 21.09.2005 passed by the Superintending Mining Engineer in accordance with the provisions of the rules and no such favour was extended to the Respondent No. 6 as alleged. In substance, the respondents have maintained that both the orders dated 21.09.2005 have been passed by the competent authorities and are perfectly legal, valid, justified and well within jurisdiction and do not suffer from any infirmity and deserves to be sustained. 115.Learned Counsel for the parties have made elaborate submissions in conformity with their respective stand as taken in the petition and replies. 116.Having heard learned Counsel for the parties and having perused the material available on record, this Court is clearly of opinion that the orders impugned cannot be sustained for being in flagrant violation of the fundamental principles of justice. 117.It is not in dispute that the appeal filed by the petitioner was entertained by the Additional Director, Mines, Jodhpur Zone, Jodhpur and on 01.09.2004 an order (Annexure-4) was passed for maintaining status quo and the case was fixed on 28.09.2005. Thereafter, on 17.09.2005 notice (Annexure-5) was addressed to the Counsel for the petitioner stating thus,- 118.It was, therefore, apparent to the Additional Director that the date of 28.09.2005 was already fixed in the appeal. Yet, for inexplicable reasons the date was preponed to 20.09.2005 and then a notice was sent to the Counsel for the petitioner that was received by him on 19.09.2005. Yet, for inexplicable reasons the date was preponed to 20.09.2005 and then a notice was sent to the Counsel for the petitioner that was received by him on 19.09.2005. All said and done, it was never stated in the notice that the learned appellate authority was going to take up consideration of the stay application all over again on the preponed date i.e., 20.09.2005 itself . 119.The learned Additional Director has heard the parties on 20.09.2005 and has passed the order next day i.e., 21.09.2005. The order so passed is also cryptic, cursory and non-speaking to the hilt. After reciting the submissions made by the parties, the entire discussion as made by the learned Additional Director reads thus:- 120.The swiftness with which the Department has proceeded has been to this extent that on the same day of 21.09.2005, the Respondent No. 6 has been sanctioned an area of 4.5 hectares and directions have been issued for execution of the lease deed (Annexure-7). The manner in which the respondents have dealt with the matter leaves much to be desired. .21.It is beyond comprehension that in relation to the area, when there were applications pending for long; the Respondent No. 6 has allegedly applied on 04.06.2003 and submitted revised plan allegedly on 01.07.2003; and on the other hand when the petitioner has applied on 23.07.2003 .and the application was rejected on 30.10.2004 (Annexure-2) on the ground of his failure to remove deficiencies; and the appeal was registered at No. 244/2005 and a stay order was passed on 01.09.2005; and a date of 28.09.2005 was fixed that was nearly four weeks from the date of passing of the stay order; and despite the things moving with such leisurely pace, what emergent situation suddenly arose for not only preponing the date but even passing immediately an order for vacating the stay and then issuing sanction in favour of the Respondent No. 6 on the same date? 22.There appears to be no justification for fixing the date to 20.09.2005 only on receipt of the application of the Respondent No. 6 for impleadment; and there is no material available on record to even remotely justify as to why and for what emergency the appellate authority was required to prepone the date? 22.There appears to be no justification for fixing the date to 20.09.2005 only on receipt of the application of the Respondent No. 6 for impleadment; and there is no material available on record to even remotely justify as to why and for what emergency the appellate authority was required to prepone the date? This Court is clearly of opinion that preponing of a date already fixed has to be on some valid and justified reasons and else any Court or authority cannot alter the schedule of hearing of the matter at its whims. In this case, no such reason is forthcoming. Moreover, even if it was considered expedient, the notice of preponing the date was served on the Counsel for the petitioner only on 19.09.2005 and that too informing about the application for impleadment filed by the respondent. May be for the facts and circumstances and the conflict of areas having been a subject matter of dispute, the Respondent No. 6 was considered to be a necessary party in the appeal and for that matter, she could have been ordered to be impleaded, it is beyond comprehension that with the impleadment itself , the stay order was vacated and then the Counsel for the parties were directed to remain present for hearing on 28.09.2005. To cap it all, the lightening speed of the action of the Superintending Mining Engineer of issuing allotment order on 21.09.2005 itself (Annexure-7) in favour of the Respondent No. 6 makes it clear that, quite antonymous to the requirement that justice must not only be done, but must appear to have been done; in the present case, justice has not only been denied but has explicitly been made to appear as denied. The course adopted by the respondents stand in direct opposition to all cannons of justice and cannot be appreciated. On this count alone, the impugned orders and actions deserve to be quashed. 23.Apart from the fact that the order impugned suffers from grossest impropriety and the manner in which it has been made gives rise to a serious question mark on the purity of the system adopted by the authorities concerned, the impugned order (Annexure-6) for vacating stay cannot be sustained for being absolutely arbitrary, cryptic and non-speaking. 23.Apart from the fact that the order impugned suffers from grossest impropriety and the manner in which it has been made gives rise to a serious question mark on the purity of the system adopted by the authorities concerned, the impugned order (Annexure-6) for vacating stay cannot be sustained for being absolutely arbitrary, cryptic and non-speaking. As noticed hereinbefore, the learned appellate authority after reciting the submissions made by the Counsel from both the sides, has not put any word of reason for the conclusion being reached and merely it has been recorded that it was considered appropriate to implead the party and, therefore, the stay order previously made on 01.09.2005 was vacated. This Court is unable to countenance such an approach of an appellate authority entrusted with quasi-judicial functions. When a stay order had been issued by the same authority on 01.09.2005, even if it was considered appropriate to vacate the same, it was minimum required of the authority concerned to spell out the reasons therefore. It would be rather preposterous to suggest that merely because an applicant has been impleaded as a party to the litigation, on this Court alone, the interim order passed earlier is required to be vacated. No other cause, reason or justification has been spelt out in the order (Annexure-6) so over-zealously passed by the learned appellate authority. As already noticed above, the order was calculated only to facilitate issuance of sanction in favour of the Respondent No. 6 that has in fact been issued on the very same day of passing of the order. The respondents having acted with grossest impropriety, the impugned orders cannot be sustained. .24.This Court, is thoroughly dissatisfied with the manner in which the Additional Director, Mines, Jodhpur Zone, Jodhpur has dealt with the matter is passing the impugned order (Annexure-6) and so also the manner in which the Superintending Mining Engineer, Jodhpur has issued the sanction on 21.09.2005 itself (Annexure-7). In that view of the matter, it does not appear appropriate while quashing these orders to remit the matter to the Additional Director, Mines, Jodhpur Zone, Jodhpur and instead, it appears appropriate that the matter be remitted to the Director, Mines and Geology, Udaipur to take up consideration of the appeal on merits. In that view of the matter, it does not appear appropriate while quashing these orders to remit the matter to the Additional Director, Mines, Jodhpur Zone, Jodhpur and instead, it appears appropriate that the matter be remitted to the Director, Mines and Geology, Udaipur to take up consideration of the appeal on merits. However, it does appear that Respondent No. 6 is a directly affected party and, therefore, the .order impugned insofar it relates to impleadment of the Respondent No. 6 is concerned, the same is maintained. However, concluding part of the impugned order, of vacating the stay order dated 01.09.2005 is required to be set aside and the order dated 01.09.2005 (Annexure4) is required to be restored to remain in force till appropriate orders are passed by the appellate authority. 25.During the course of submissions, learned Counsel for the petitioner Mr. Devilal R. Vyas emphatically contended that the impugned orders deserve to be set aside and at the same time, the matter deserves to be remitted for reconsideration by an independent authority and in view of the actions taken by the authorities of the Department, learned Counsel submitted that it would be in the interest of justice to send the matter directly to the Government in its Mines Department for consideration of the appeal on merits. It appears that such a prayer has come up on behalf of the petitioner in view of the fact that apart from the Additional Director proceeding with the appeal in a wholly improper manner, the Director, Mines and Geology had issued sanction in favour of Respondent No. 6 for extension of the area of 4.5 hectares on 25.08.2005 as noticed in the impugned order (Annexure-6). However, on the material available on record, this Court is unable to countenance such submissions at this stage that justice is likely to be denied to the petitioner by the Director, Mines and Geology merely because of his having issued a sanction in favour of the Respondent No. 6. This Court would not like to make any comment either on the merits of the case or on the apprehension of the petitioner of denial of justice by all the authorities of the Department. However, the petitioner, if so feels necessary and so advised, would be free to make such submissions before the Government in its Mines Department for passing of appropriate orders. However, the petitioner, if so feels necessary and so advised, would be free to make such submissions before the Government in its Mines Department for passing of appropriate orders. 26.As a result of the aforesaid, this writ petition succeeds to the extent indicated above. The impugned order dated 21.09.2005 (Annexure-6) is quashed insofar it relates to vacating of stay order dated 01.09.2005 and the stay order dated 01.09.2005 is restored and shall continue to remain in force till further orders are passed by the appellate authority after hearing all the parties. As a necessary consequence of revival of stay order, the order issued by the Superintending Mining Engineer dated 21.09.2005 (Annexure-7) is rendered void and is, therefore, quashed. 27.Appeal No. 244/2005 shall stand transferred to the Director, Mines and Geology, Udaipur who shall take up consideration of the appeal keeping in view the observations made hereinabove. It is also made clear that this order shall not preclude the petitioner from making any request to the State Government in its Mines Department in relation to the hearing of the appeal. All the parties are directed to appear before the Director, Mines and Geology, Udaipur on 25.03.2006. 28.It is also made clear that nothing state herein shall be construed as any comment on the merits of the case as involved in the appeal filed by the petitioner. However, irrespecive of the merits of the case, the petitioner is entitled to the costs of this writ petition quantified at Rs. 2,200/-to be borne equally by the Respondents No. 1 to 5 and the Respondent No. 6.