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2007 DIGILAW 382 (KAR)

V. N. K. MENON v. S. MAQBOOL AHAMED BASRA

2007-07-03

JAWAD RAHIM, S.R.BANNURMATH

body2007
S.R. Bannurmath, J., JUDGMENT This appeal is filed challenging the order dated 15th June, 2007 passed by the learned Single Judge granting an interim order of stay, staying all further proceedings pursuant to the mining lease granted to the appellant herein, for a period of three months. 2. Though the matter is posted for preliminary hearing, since in the order passed either way would result in the disposal of the writ appeal itself and for that matter, the writ petition itself, with the consent of learned Counsel on both the sides, the matter is taken up for final disposal. 3. The respondent 1 herein, is the petitioner in the Writ Petition No. 9217 of 2007 and he has challenged the order dated 25th May, 2007 of the Revisional Authority constituted under the provisions of the Mines and Minerals Development and Regulation) Act, 1957 in the Revision Application No. 13/(4)2007 - RCI. This revision petition is filed against the notification dated 12th January, 2007, granting mining lease to the appellant herein in respect of 10 hector of land in Dharmapuri Village of Sandur Taluk, Bellary District. In the revision petition, the writ petitioner requested for interim stay of all proceedings in pursuance of granting mining lease to the appellant. The Revisional Authority after hearing both the sides and considering the records, by the impugned order refused to the grant stay and hence, the present writ petition was filed. 4. The learned Single Judge after hearing both the sides by the order dated 15-6-2007 has granted an interim order of stay in favour of the writ petitioner/respondent 1 herein for a limited period of three months. It is this order which is challenged in the present writ appeal. 5. 4. The learned Single Judge after hearing both the sides by the order dated 15-6-2007 has granted an interim order of stay in favour of the writ petitioner/respondent 1 herein for a limited period of three months. It is this order which is challenged in the present writ appeal. 5. In order to appreciate the arguments on both sides it is necessary for us to consider few facts practically undisputed by both the sides: (a) In the year 1979, the appellant had filed an application seeking grant of mining lease to an extent of 75 acres in Dharmapuri Village in Bellary District; (b) The application came to be rejected in the year 1980 and the same was questioned by the appellant before the Central Government and same came to be allowed and the State Government was directed to reconsider the mining lease application afresh on merit; (c) In the year 1994, when the State Government again rejected the application, the appellant questions the same before this Court in Writ Petition No. 12617 of 1987; (d) This Court by the order dated 1-3-1994 allowed the writ petition and again directed the State to reconsider the application in accordance with law; (e) After many proceedings, the case of the appellant was reconsidered and it was proposed to grant the lease, on completion of the formalities. It is to be noted that at that stage, the appellant restricted his claim to 12 hectares instead of 75 acres; (f) Thereafter on completion of the necessary procedures like obtaining clearance from the Forest Department, spot inspection etc., on 12th January, 2007, the State Government sanctioned the grant of mining lease to the appellant for a period of 20 years to an extent of 10 hectares in the land in Dharmapuri Village; (g) In the meanwhile, it appears in the year 2004, the writ petitioner had also filed an application for grant of mining lease to an extent of 195 acres in Yeshwantnagar Village in Bellary District; (h) In the year 2006, on coming to know that the appellant's claim is being considered, the writ petitioner/respondent 1 objected to the same on various grounds including overlapping of the area applied/claimed by him; (i) After going through the records, spot inspection and considering the applications in presence of both the parties, a report is filed by the Deputy Director of Mines and Geology, Hospet, holding that the area that was recommended for the appellant was different from the area applied to/claimed by the first respondent and there is no overlapping and this report was submitted to the State Government. Accordingly, the notification was issued; (j) After issuance of the notification, the appellant has also taken the necessary Environmental Clearance Certificate from the Ministry of Environment and Forests, Government of India and thereafter mining lease deed came to be executed between the appellant and the State Government specifying the area along with boundaries and the other conditions. It is stated that the appellant has after investing huge money is operating the mines for the last few months; (k) On 13-3-2007, again the respondent 1 challenged the grant of the appellant before the Revisional Authority and prayed interim stay; (I) On 25-5-2007, on receipt of the notice, the appellant appeared before the Revisional Authority and filed his detailed objections; (m) After giving detailed hearing to both the sides represented by Counsel. The Revisional Authority by a detailed order dated 25-5-2007 refused to grant interim stay to the respondent and adjourned the case for a final disposal on 4-7-2007. 6. The Revisional Authority by a detailed order dated 25-5-2007 refused to grant interim stay to the respondent and adjourned the case for a final disposal on 4-7-2007. 6. It is this order of refusal of grant of interim stay, which is challenged in the writ petition and as already noted the learned Single Judge has granted the interim order directing that 'all further proceedings in pursuance of the grant of mining lease in favour of the appellant be stayed for a period of three months. It is this order which is impugned in the present appeal. 7. Sri D.L.N. Rao, learned Senior Counsel appearing for the appellant, taking us through the records contended that, in view of the fact that the application for the lease was filed by the appellant' as long back as in the year 1979 and the same is considered and granted, after all the objections raised by the respondent 1 and others and especially when the application of the respondent 1 is yet to be considered by the concerned authority, granting of stay against the appellant is violating the principles of natural justice and equity. It is submitted that, even though it was brought to the notice of the learned Single Judge, the failure on the part of the respondent 1 to satisfy the authority regarding the alleged overlapping and as such, his claim for interim order was another futile exercise to stop the appellant from mining, the learned Single Judge failed to consider the same and has by the impugned illegal order, granted the stay. It is contended that the learned Single Judge failed to consider the basic fact that the claim of mining area by the appellant was in respect of Dharmapuri Village, whereas admittedly the respondent 1 has filed application in respect of the land at Yeshwanthnagar Village and as such, since the claims were in respect of totally different area, as there was no conflict in interests, no interim order could have been granted in favour of the respondent. It is further vehemently contended that the impugned order of the learned Single Judge is erroneous and impermissible one inasmuch as by granting the interim order, he has virtually allowed the writ petition itself without full hearing, which has the effect of stopping all mining activities by the appellant. It is further vehemently contended that the impugned order of the learned Single Judge is erroneous and impermissible one inasmuch as by granting the interim order, he has virtually allowed the writ petition itself without full hearing, which has the effect of stopping all mining activities by the appellant. It is contended that the learned Single Judge has failed to note that the writ petition itself was filed for consideration of the order passed by the authority rejecting the prayer for the interim stay and as such, without hearing the entire case on merits, and deciding one way or the other finally, the learned Single Judge has erroneously granted the interim order, practically allowing the writ petition itself. This as per the learned Counsel for the appellant is illegal and unsustainable. It is submitted that though both the sides have produced number of documents before the learned Single Judge, without considering them and without application of mind has granted the impugned order. It is submitted that no reasons much less cogent reasons have been given by the learned Single Judge while passing the impugned order. It is submitted that the learned Single Judge has failed to take into consideration the basic requirements like consideration of prima facie case, the balance of convenience and irreparable loss or injury that would be caused by granting or not granting the interim order before passing the interim order and as such the impugned order being illegal, contrary to the well-settled principle in the regard, is liable to be set aside. The learned Counsel for the Appellant also submitted that the appellant has, in view of the grant of lease invested huge sum of money by purchasing machineries, and started mining operation by employing/hiring number of persons paying them huge salary every month, and now after three months of such working even if limited stay is granted it will ruin the appellant as he has to keep the machinery and workers without work but to pay salary and on the other hand as the application of the respondent for grant of mining lease itself is required yet be considered by the authority, by not granting the interim order, he would not lose anything. As such, it is submitted that even on equity as the respondent had no case, the learned Single Judge was not justified in granting the stay. 8. As such, it is submitted that even on equity as the respondent had no case, the learned Single Judge was not justified in granting the stay. 8. On the other hand, Sri S. Vijay Shankar, the learned Senior Counsel for the contesting respondent argued in support of the order of the learned Single Judge to contend that only after going through the entire records produced by both the sides, the learned Single Judge has thought it fit to grant interim order that too for a limited period of three months. It is submitted that as the interim order is limited one, the same should not be interfered with by this Court. It is submitted that as the application of the respondent for a grant of land is pending consideration and as the land granted to the appellant is overlapping the area ofland claimed by the respondent, it was necessary to stop the appellant from carrying on the mining operation or else it is the respondent who would be put to irreparable loss. In this regard the learned Counsel has taken us in detail through various documents produced along with is the statement of objections to justify the interim order granted by the learned Single Judge. 9. We are heard both the Counsels at length and perused the records referred to by them in detail. 10. At the outset, it is to be mentioned that whenever interim orders are granted in the writ petition by the learned Single Judge, the Division Bench will not normally interfere with the interim order if that by itself is challenged in the writ appeal. Usually the Division Bench would direct the parties to approach the learned Single Judge for reconsideration of the interim order by vacating/modifying the same. However, in the present case in view of the peculiar facts and circumstances of the case and questions raised as to the correctness or otherwise of the procedures for a grant of interim order is required to be considered, we have heard the matter and are disposing of the same by the present order. 11. Even though both the learned Counsel relied upon numerous documents and argued at length on merits and demerits of the case, in our view, it is not necessary to go into the merits of the case at all. 11. Even though both the learned Counsel relied upon numerous documents and argued at length on merits and demerits of the case, in our view, it is not necessary to go into the merits of the case at all. Since the only question required to be considered by us is the correctness or otherwise of granting interim order which has the effect of disposal of the main writ petition in itself. 12. The principles as to the grant of interim order, the law is fairly well-settled by various pronouncements of the Hon'ble Supreme Court. In the case of Transmission Corporation of Andhra Pradesh Limited v Lanco Kondapalli Power (Private) Limited, it is held that the interim order/direction ordinarily would proceed on finding a prima facie case. When the existence of a prima facie case is established, the Court shall consider the other relevant factors, namely the balance of convenience and irreparable loss or injury. In the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v Dunlop India Limited and Others, it is held that Article 226 of the Constitution of India is not meant to short-circuit or circumvent a statutory procedures and the Hon'ble Supreme Court deprecated the practice of granting interim order, which practically gives principal relief sought in the petition for no better reason than a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations. In the case of Union of India and Others v M/s. Modiluft Limited, the Apex Court has in detail considered about the grant of interim orders under Article 226 of the Constitution of India and held that grant of interim order which has the effect of final relief is impermissible. It is observed that the order of the Courts should be equitable orders. An order in equity is one which is equitable to all the parties concerned. Yet in another case of State of Uttar Pradesh and Another v Private Secretaries and Personal Assistants' Brotherhood, High Court, Allahabad and Another, it is held that the interim order passed by the High Court having effect of actually allowing the writ petition is not proper and hence liable to be set aside. Yet in another case of State of Uttar Pradesh and Another v Private Secretaries and Personal Assistants' Brotherhood, High Court, Allahabad and Another, it is held that the interim order passed by the High Court having effect of actually allowing the writ petition is not proper and hence liable to be set aside. Similar is the pronouncement in the case of Bank of Maharashtra v Race Shipping and Transport Company Private Limited and Another, wherein it is observed that time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience". In the case of Shiv Shankar and Others v Board of Directors, Uttar Pradesh State Road Transport Corporation\ it is held that an interim order to be granted by the Court is to protect the right or interest of the party approaching the Court till the claim is adjudicated finally. It is temporarily in nature and is made in the meantime. But, if the same is adjudicated and effect is of the case being disposed off finally, then such interim orders should not be granted. 13. Keeping in view these principles, it is clear that while granting interim order the Court must not only see existence of a prima facie case but there after also consider the balance of convenience and irreparable loss or injury that can be caused by such order to one or the other party. It is in these circumstances, the Apex Court in various cases felt the desirability of also passing of speaking order even while passing interim orders. 14. In the present case, by looking at the interim order, it is not clear as to whether the learned Single Judge found a prima facie case in favour of the respondent l/writ petitioner. Even there is nothing to indicate the consideration of balance of convenience or the irreparable loss or the injury that would be caused to the parties by granting or not granting the interim order. Even there is nothing to indicate the consideration of balance of convenience or the irreparable loss or the injury that would be caused to the parties by granting or not granting the interim order. Moreover, the order of the learned Single Judge requires to be interfered with, in view of the fact that when the writ petition itself is filed challenging the order of the Revisional Authority of not granting an interim order as prayed by the writ petitioner and the writ petition is kept pending for consideration, interim order that too which has the effect of final order itself, even for limited period of few months could not have been granted since the same would amount to allowing writ petition itself for limited period. 15. Since we are also disposing of the writ appeal by interfering with the order of the learned Single Judge, we feel it necessary to consider the case viz., the writ petition itself on merits for the limited purpose of finding out whether the Revisional Authority was justified in rejecting the interim order to respondent l/writ petition. 16. In our view, it is not necessary to go into the details of the facts of the case for this purpose. Suffice it to note that the appellant is a person armed with grant of lease and for the last three months he is operating the mines. It is needless to mention that for this purpose he has to invest lot of money, to purchase necessary equipments/machinery and as rightly pointed out by the appellant-employ and hire lot of personnel to carry out the operation. On the other hand, the very application for grant of lease itself of respondent 1 is yet to be considered which will take many more days or months. In such a situation, in our view, the balance of convenience is in favour of the appellant and the probable loss or injury that could be caused by delaying tactics would be of the appellant. Even though the learned Single Judge has restricted the interim order for 3 months, in that process, every day mining work of the appellant would come to stand still causing irreparable loss to him. 17. Even though the learned Single Judge has restricted the interim order for 3 months, in that process, every day mining work of the appellant would come to stand still causing irreparable loss to him. 17. We have looked into the impugned order of the Revisional Authority which has considered the case in detail and by proper application of mind has passed the order of rejection of the prayer of the respondent 1 for stopping the mining operation by the appellant. 18. In our view for the reasons mentioned in the order of the Authority, that no prima facie case is made out by the respondent l/writ petitioner is justified and as such, no case for exercising the jurisdiction under Article 226 of the Constitution of India has been made out to interfere with the impugned order of the Revisional Authority dated 25-5-2007 and hence hold that the writ petition itself is devoid of merits and is liable to be dismissed. 19. For the reasons stated above the writ appeal is allowed, the order dated 15-6-2007 passed by the learned Single Judge in W.P. No. 9217 of 2007 is quashed and the writ petition itself is dismissed as devoid of merits with no orders as to costs. 20. Before parting with the case, we make it clear that any observations/reference made in the course of this order should not the construed as final findings of this Court on merits of the case of the parties as they are still litigating before the Authority. We make it clear that it is open for the parties to raise all the points that have been raised before this Court and the Authority should not construe any observations on merits as final conclusion of this Court. In the facts and circumstances of the case there shall be no orders as to costs.