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2008 DIGILAW 377 (ORI)

DHANANJAY KUMAR DAGARA v. STATE OF ORISSA

2008-05-02

ASOK KUMAR GANGULY, B.N.MAHAPATRA

body2008
JUDGMENT : A.K. Ganguly, C.J. - This writ petition has been filed by one Dhananjay Kumar Dagara challenging the order passed by the Central Government u/s 30 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter called the/said Act') and Rule 55 of the Mineral Concession Rules, 1960 (hereinafter called the 'said Rules'). 2. The relevant facts of the case are that the Petitioner filed an application on 29.10.1991 for an area which consists of 224.20 hectares for a Prospecting Licence under the Act and Rules. The Petitioner's case is that though his application was free from any defect, the same was not processed for a long time by the State Government disregarding the mandatory statutory provisions. It was also argued that the State of Orissa took a decision to grant the Prospecting Licence for 85 hectares to the Petitioner on or about 15.9.1998. That decision was submitted to the Central Government for approval and that decision of the State of Orissa in favour of the Petitioner was approved by the Chief Minister. But the said decision of the State of Orissa was recalled by the note dated 30.5.2001 of the Additional Secretary to Government of Orissa without prior approval of the Chief Minister. On the basis of that note, Government of India, Ministry of Mines returned the proposal by its communication dated 10.7.2001. It was argued that this was done to favour opposite party No. 4 and that was done u/s 11(5) of the Act. Further case of the Petitioner is that the area for which recommendation has been made in favour of opposite party No. 4 falls within the area of 6204.352 hectares, the same area for which the Petitioner also applied. The Petitioner's grievance is that disregarding the preferential right of the Petitioner, opposite party No. 1 illegally exercised on 19.12.2006 its power in favour of opposite party No. 4 u/s 11(5) of the said Act. 3. It appears that apart from Khandadhar Block in Sundargarh District of Orissa, which was reserved for exploitation of iron ore mines for different public sector Companies in the State of Orissa, the Department of Steel and Mines vide Gazette Notification dated 23.8.1991 published on 13.9.1991 under Rule 59 of the said Rules, dereserved the Khandhdhar Block making it available for regrant on and from 29.10.1991. 4. 4. Pursuant to such notification, about 250 Prospecting Licence applications for mining lease (ML) were filed including the ones by the Petitioner, opposite party No. 4 and opposite party No. 5 in respect of the said area. Opposite party No. 1 by its Order dated 19.12.2006 recommended the Prospecting Licence of opposite party No. 4 to the Central Government for its approval u/s 5(1) of the said Act. 5. Under those circumstances, opposite party No. 5 filed a writ petition before the Hon'ble Court being W.P.(C) No. 1775 of 2007 inter alia challenging the exercise of power by opposite, party No. 1 in favour of opposite party No. 4 and it was also urged in that case that the opposite party No. 5 had no preferential right under the said Act and Rules. Opposite party No. 5 also filed Anr. writ petition before this Court being W.P.(C) No. 95 of 2007 praying for quashing of the resolution dated 10.11.2006 which was passed by opposite party No. 1 revoking the permission given to opposite party No. 5 to set up its pellestisation plant and in that application, a direction was also sought from this Court to command opposite party No. 1 to consider and grant mining lease in favour of opposite party No. 5. Both the writ petitions were heard and disposed of by this Court by an Order dated 16.4.2007 with a direction that the objection of opposite party No. 5 dated 19.12.2006 will be treated as its revision before, the appropriate authority. The operative portion of the order of the High Court is as follows: However, we make it clear that the Petitioner's representation against the order of the State Government dated 19.12.2006 may be treated as a revisional application. Learned Advocate General submits that the copy of the comments of the State Government will be made available to the learned Counsel for the Petitioner by tomorrow. The Petitioner will file its rejoinder within three weeks from the date of receipt of such comments. The Central Government should find its way to hear and dispose of the controversy early by giving all the parties in this proceeding an opportunity of personal hearing and also by giving each one of them the right of raising all points of law which are available on record. The Central Government should find its way to hear and dispose of the controversy early by giving all the parties in this proceeding an opportunity of personal hearing and also by giving each one of them the right of raising all points of law which are available on record. Since the matter is to be decided by the Central Government under the statutory provision, we do not express any opinion on the rival claims of the parties. This Court will appreciate if the Central Government decides this controversy as early as possible, preferably within a period of three months from the date of service of this order upon the Central Government. It is open to any of the parties to serve a copy of this order on the Central Government. 6. The Revisional Authority, opposite party No. 2 disposed of the Revision application by its order dated 27.9.2002 and directed the opposite party No. 2 to consider all the pending applications simultaneously in respect of the area applied for by opposite party No. 4 and pass an order after offering an opportunity of hearing to all the applicants. For better appreciation of the said order, the relevant direction of the Revisional Authority is set out below: When a number of applications were lying pending for grant of mineral concession, it was obligatory on the part of the State Government to have examined all the pending applications before it and pass order thereon after examining their inter semerits and then come to the conclusion for granting mineral concession, which in the case, the State Government has failed to do. As regard setting up of pellestisation plant by the Petitioner, the State Government could have put the same as a condition while granting PL to the Petitioner as has been done in case of POSCO while sending their proposal to the Central Government for prior approval. In view of the foregoing, we are of the opinion that State Government has erred in not considering all the mineral concession applications simultaneously that were pending with them for the area and instead State Government has without passing order on those applications has recommended the case of impleaded party for grant of PL. In view of the foregoing, we are of the opinion that State Government has erred in not considering all the mineral concession applications simultaneously that were pending with them for the area and instead State Government has without passing order on those applications has recommended the case of impleaded party for grant of PL. Therefore, State Government's Order dated 19.12.2006 is set aside with the direction to consider all the pending applications simultaneously and examine inter se merit of all the applications and then pass an order as per law after affording an opportunity of hearing to all the applicants. The said Order dated 27.9.2007 under Annexure-2 has been impugned in this writ petition. 7. The case of the opposite party No. 1 is that after the Order dated 19.12.2006 was quashed by the revisional authority and the Order dated 27.9.2007 was passed, opposite party No. 1 issued notice to all the applicants including the Petitioner, also to opposite party No. 4 and opposite party No. 5. Such notices were issued under Rule 12(1) of the said Rules to enable the applicants to furnish information and documents if any, along with additional information in the format included in the notice and they were also directed to appear for personal hearing. The Petitioner was also given notice to appear for personal hearing on 12.11.2007. But the Petitioner, instead of appearing before the Secretary pursuant to such notice, gave a representation dated 12.11.2007 which is at Annexure-4. In that representation, various contentions have been raised by the Petitioner and one of the contentions is that the Secretary, who issued the notice under Rule 12 and 26 of the said Rules, is incompetent to hear. Apart from that bias and predetermination of mind has also been alleged. This writ petition has thus been filed by the Petitioner on 28.11.2007 substantially praying for quashing of Annexure-2 referred to hereinabove. 8. Apart from the aforesaid contention, it was also urged that the Petitioner has a preferential right u/s 11 of the said Act inasmuch as the Petitioner claims to have made an application on 29.10.2001 for a prospective licence. It is however not disputed that the Petitioner made an application in the notified area. In fact, all the applications which were made, were in the notified areaTThe said notification dated 23.8.1991 has been annexed in the counter affidavit filed by the State Government. It is however not disputed that the Petitioner made an application in the notified area. In fact, all the applications which were made, were in the notified areaTThe said notification dated 23.8.1991 has been annexed in the counter affidavit filed by the State Government. The relevant recitals in the said notification is as follows: The State Government have now decided to dereserve the above mineral bearing areas as per the boundary description given below. It is therefore, notified for information of Public that the said mineral bearing areas (including the areas earlier granted/held under M.L./P/L, and subsequently surrendered, revoked, determined or whose term expired but which were not thrown open for regrant as required (under Rule 59 of the M.C. Rules, 1960) will be available for regrant on and from 29th October, 1991 as per Rule 59(1) of M.C. Rules, 1960. 9. It is clear from the aforesaid recitals in the said notification that it does not have any end date and it does not mention any prescribed period. It is clear from the aforesaid recital that such notification was issued under Rule 59 of the said Rules. Rule 59 of the said Rules is set herein below: Rule 59. 9. It is clear from the aforesaid recitals in the said notification that it does not have any end date and it does not mention any prescribed period. It is clear from the aforesaid recital that such notification was issued under Rule 59 of the said Rules. Rule 59 of the said Rules is set herein below: Rule 59. Availability of area for regrant to be notified -(1) No area - (a) which was previously held or which is being held under a reconnaissance permit or a prospecting licence or a mining lease; or (b) which has been reserved by the Government or any local authority for any purpose other than mining; or (c) in respect of which the order granting a permit or licence or lease has been revoked under Sub-rule (1) of Rule 7-A or Sub-rule (1) of Rule 15 or Sub-rule (1) of Rule 31, as the case may be; or (d) in respect of which a notification has been issued under Sub-section (2) or Sub-section (4) of Section 17; or (e) which has been reserved by the State Government or u/s 17A of the Act, shall be available for grant unless - (i) any entry to the effect that the area is available for grant is made in the register referred to in Sub-rule (2) of Rule 7D or Sub-rule (2) of Rule 21 or Sub-rule (2) of Rule 40, as the case may be; and (ii) the availability of the area for grant is notified in the Official Gazette and specifying a date (being a date not earlier than thirty days from the date of the publication of such notification in the Official Gazette) from which such area shall be available for grant: Provided that nothing in this rule shall apply to the renewal of a lease in favour of the original lessee or his legal heirs notwithstanding the fact that the lease has already expired: Provided further that where an area reserved under Rule 58 of u/s 17A of the Act is proposed to be granted to a Government company, no notification under Clause (ii) shall be required to be issued: Provided also that where an area held under a reconnaissance permit or a prospecting licence, as the case may be, is granted in terms of Sub-section (1) of Section 11, no notification under Clause (ii) shall be required to be issued. (2) The Central Government may, for reasons to be recorded in writing, relax the provisions of Sub-rule (1) in any special case. 10. Now the question is whether the Petitioner who has applied in the notified area is entitled to any preferential right u/s 11 of the said Act. 11. Relying on his claim for preferential right, the Petitioner has assailed the impugned order at Annexure-2 wherein there is a direction for simultaneous consideration of all the applications. It was therefore argued that the Central Government committed an error by directing simultaneous consideration of all applications with the application of the Petitioner. 12. For a better appreciation of the aforesaid contention of the Petitioner, this Court sets out herein below the provision of Section 11 as it stood prior to its amendment from 18/20.12.1999 by an Amendment Act No. 38 of 1999. Admittedly, Section 11(1) is not relevant in this connection. So, pre-amended provision of Section 11(2), (3) and (4) and the amended provision of Section 11(2), (3) and (4) are set out below: Pre-amended provisions of Section 11(2)(3) and (4) are as follows: 11(2). Subject to the provisions of Sub-section (1), where two or more persons have applied for a prospecting licence or a mining lease in respect of the same land, the applicant whose application was received earlier shall have a preferential right for the grant of the licence or lease, as the case may be, over an applicant whose application was received later: Provided that where any such applications are received on the same day, the State Government, after taking into consideration the matters specified in Sub-section (3), may grant the prospecting licence on mining lease, as the case may be, to such one of the applicants as it may deem fit. 11(3). The matters referred to in Sub-section (2) are the following: (a) any special knowledge of, or experience in, prospecting operations or mining operations, as the case may be, possessed by the applicant; (b) the financial resources of the applicant; (c) the nature and quality of the technical staff employed or to be employed by the applicant; (d) such other matters as may be considered. 11(4). 11(4). Notwithstanding anything contained in Sub-section (2) but subject to the provisions of Sub-section (1), the State Government may for any special reasons to be recorded and with the previous approval of the Central Government, grant a prospecting licence or a mining lease to an applicant whose application was received later in preference to an applicant whose application was received earlier. Amended provisions of Section 11(2), (3) and (4) are as follows: 11(2). Subject to the provisions of Sub-section (1), where the State Government has not notified in the official gazette the area for grant of reconnaissance or prospecting licence or mining lease as the case may be and two or more persons have applied for a reconnaissance permit prospecting licence or a mining lease in respect of any land in such area, the applicant whose application was received earlier shall have the preferential right to be considered for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, over the applicant whose application was received later: Provided that where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by notification in the official gazette for grant of such permit, licence or lease, all the applications received during the period specified in such notification and the applications which had been received prior to the publication of such notification in respect of the lands within such area and had not been disposed of, shall be deemed to have been received on the same day, the State Government for the purposes of assigning priority under this Sub-section. Provided further that where any such application are received on the same day, the State Government, after taking into consideration the matter specified in Sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. 11(3). Provided further that where any such application are received on the same day, the State Government, after taking into consideration the matter specified in Sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. 11(3). The matters referred to in Sub-section (2) are the following: (a) any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant; (b) the financial resources of the applicant; (c) the nature and quality of the technical staff employed or to be employed by the applicant; (d) the investment which the applicant proposes to make in the mines and in the industry based on the minerals, (e) such other matters as may be prescribed. 11(4). Subject to the provisions of Sub-section (1), where the State Government notifies in the Official Gazette an area for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, all the applications received during the period as specified in such notification, which shall not be less than thirty days shall be considered simultaneously as if all such applications have been received on the same day and the State Government, after taking into consideration the matters specified in Sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants s it may deem fit. 13. It appears that Sub-section (2) of Section 11 has been substantially amended in 1999. Under the amended provision after 1999, the principle of first come, first served does not survive and consequently no preferential right exists in respect of notified area. As such the assertion made by the Petitioner is contrary to Section 11(2) as amended. It may be true that at the time when the notification was gazetted on 13.9.1991, Section 11(2) did not contemplate any difference in respect of application for notified area and non-notified area. The 1991 notification has been provided for any fixed date of receipt of application for an area notified by the State Government. But after the amendment on 18.12.1999 a new proviso to Sub-section (2) of Section 11 was added. A new Sub-section (4) was also added. Admittedly no preferential right of the Petitioner, if any, survives after the amendment. 14. The 1991 notification has been provided for any fixed date of receipt of application for an area notified by the State Government. But after the amendment on 18.12.1999 a new proviso to Sub-section (2) of Section 11 was added. A new Sub-section (4) was also added. Admittedly no preferential right of the Petitioner, if any, survives after the amendment. 14. Now the question is whether the preferential right under the pre-amended Section of Section 11(2) survives after its amendment in 1999. This question has been answered by the Supreme Court in the case of State of Tamil Nadu Vs. Hind Stone and Others. The question in that case was whether an application filed on the basis of the law as it stood prior to coming into effect of Rule 8-C will be considered on the basis of law which stood at the time of the filing of the application. 15. The learned Judges answered that question in paragraph 13 at page 720 of the report; which is as follows: It is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. That being the clear position in law, the Petitioner cannot claim that his application has to be disposed of today on the basis of his alleged preferential right under the un-amended provision of Section 11(2). 16. It may be noted herein that the Petitioner did not come before this Court praying for disposal of his application during the period when his application was kept pending. 16. It may be noted herein that the Petitioner did not come before this Court praying for disposal of his application during the period when his application was kept pending. The Petitioner totally slept over his right, if any, under the old provision. Now, when that old provision has been replaced by the amended provision, the Petitioner cannot contend that his application must be considered under the old provision. Such a contention is not tenable in view of the law settled by the Hon'ble Supreme Court as pointed out above. 17. Apart from that, such contention is also opposed to the scheme of the said Act inasmuch as the Petitioner has no vested right in getting the lease or the licence. Mere filing of an application does not confer any right on the applicant except the right to have his application considered in accordance with law. If there is a change in the procedure of considering such application during the pendency of the application, the applicant cannot complain that he will not be affected by the change of the procedure since nobody has any vested right in the procedure. Since the amendment affects the procedure about consideration of application, the amendment "applies to all actions pending as well as future." See: Attorney General v. Vernazza (1960) 3 All ER 97 at page 100. In Maxwell's Interpretation of Statute (11th Edition, pg. 216) it has been clearly stated "No person has any vested right in any course of procedure." The Petitioner therefore cannot claim any preferential procedural-right on the basis of an old procedure in the matter of consideration of his application under the unamended law. 18. The next attack to the impugned order is that the Committee which is to hear the parties in incompetent to do so. In support of this contention the Petitioner relies on Section 10(3) of the Act which provides that it is the State Government which may, having regard to the provisions of the Act and the Rules made there under, grant or refuse to grant the permit, licence or lease. It was then argued that Secretary is not the State Government. If the Secretary has to hear, then there must be Statutory delegation by the State in favour of the Secretary u/s 26(2) of the Act. The said function of the State Government can be delegated by notification in the official gazette. It was then argued that Secretary is not the State Government. If the Secretary has to hear, then there must be Statutory delegation by the State in favour of the Secretary u/s 26(2) of the Act. The said function of the State Government can be delegated by notification in the official gazette. But in the instant case there is no such notification. Relying on the aforesaid statutory provisions, learned Counsel urged that in this matter the State has filed a counter affidavit. From Annexure-1 to the said counter affidavit dated 18.12.2007 it appears that the Petitioner vide notice dated 21.9.2007 under Rule 12(1) of the said Rules was asked to appear before the Secretary to the Government, Department of Steel and Mines on 12.11.2007 for personal hearing to state his case. Learned Counsel has also drawn the attention of the Court to an office Order dated 5.9.2007 passed by the Government of Orissa in the Department of Steel and Mines to the extent that Government have constituted a Committee to determine relative merits of different applicants based on documents as well as personal hearing. Such Committee consists of as follows: 1. Commissioner-cum-Secretary Steel & Mines Department Chairman 2. Special Secretary/ Joint Secretary Member 3. Director of Mines, Orissa Member Relying on these materials, the learned Counsel submits that hearing is to be given by the said Committee which consists of the aforesaid persons, namely, the Commissioner-cum-Secretary, Steel and Mines Department, the Special Secretary/Joint Secretary, Steel and Mines Department and the Director of Mines, Orissa. The said Committee has been constituted on the basis of an office order. But there is no statutory delegation by the State Government in terms of Section 26(2) of the said Act. 19. For better appreciation of the points which have been urged this Court sets out hereinbelow Section 10(3) and Section 26(2) of the said Act. 10. Application for prospecting licences or mining leases - (1) xx xx xx (2) xx xx xx (3) On receipt of an application under this Section, the State Government may, having regard to the provisions of this Act and any Rules made thereunder, grant or refuse to grant the permit, licence or lease. 26. 10. Application for prospecting licences or mining leases - (1) xx xx xx (2) xx xx xx (3) On receipt of an application under this Section, the State Government may, having regard to the provisions of this Act and any Rules made thereunder, grant or refuse to grant the permit, licence or lease. 26. Delegation of powers - (1) xx xx xx (2) The State Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act may, in relation to such matters and subject to such conditions, if any, as may be specified in the notification, be exercisable also by such office or authority subordinate to the State Government as may be specified in the notification. 20. Learned Counsel for the Petitioner states that neither the Office Order nor the Rules of Business of the Government can be a substitute for statutory delegation and neither of them can authorize the Secretary to hear the application. In support of said contention the learned Counsel relied on a decision of the Supreme Court in the case of Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State Road Transport Corporation and Another, and on the question of hearing the learned Counsel relied on a decision of the Patna High Court reported in AIR 1996 SC 58. 21. Learned Counsel for the State submits that the power u/s 26(2) is an enabling power and under that power the State can, instead of hearing the application itself, delegate the power in favour of any officer or authority subordinate to the State Government as may be specified in the notification. It was further submitted that in this case the State Government has not delegated it power and heard the matter itself inasmuch as the hearing by a Committee headed by the Commissioner-cum-Secretary of the Department of Steel and Mines is hearing by the State Government itself. 22. The learned Counsel for the State pointed out that under Rule 12 of the said Rules, the State Government has the power to refuse the grant of an application for a prospecting licence and also its power of refusing the renewal of the prospecting licence for the whole or part of the area applied for. Similarly under Rule 26 the State Government has the power to refuse an application for grant and also the power to refuse renewal of a mining lease. Similarly under Rule 26 the State Government has the power to refuse an application for grant and also the power to refuse renewal of a mining lease. But in both the cases the State Government has to exercise its power after giving the applicant an opportunity of being heard and in support of the order the State Government has to record reasons in writing which has also to be communicated to the applicant. It was urged that in exercise of that power State has asked the Petitioner to appear before it for personal hearing under Rule 12. 23. This Court finds that the Rules of Business which have been framed in exercise of powers conferred under Clause (3) of Article 166 of the Constitution of India have been referred to by both the parties. It appears that under Rule 5 of the said Rules of Business the Government is empowered, on the advise of the Chief Minister, to allot the business of the Government by assigning one or more departments to the charge of a Minister or of a Minister of Sate. Under Rule 14 it is provided that the said Rules of Business may be supplemented to such extent as is necessary by instructions issued by the Governor on the advice of the Chief Minister. There is a schedule to the Rules of Business. The said schedule is prepared in terms of Rule 4 of the Rules of Business. Rule 4 of the Rules of Business provides that the business of the Government shall be transacted in the departments specified in the First Schedule and shall be classified and distributed between those departments and their branches as laid down therein. Under the said schedule there is Clause 14 which relates to classes of cases which are to be submitted to the Chief Minister before issue of orders. Item (xlix)i of the Schedule provides for grant or recommendation for grant of mineral concessions including PL/ML for major minerals (including Bauxite) in Schedule 1 of the Mines and Minerals (Regulation and Development) Act, 1957. This is admittedly the dispensation under the Rules of Business. 24. Item (xlix)i of the Schedule provides for grant or recommendation for grant of mineral concessions including PL/ML for major minerals (including Bauxite) in Schedule 1 of the Mines and Minerals (Regulation and Development) Act, 1957. This is admittedly the dispensation under the Rules of Business. 24. The learned Counsel for the Petitioner, submitted that the aforesaid provision in the Rules of business cannot rescue the Government in the present situation inasmuch as, according to him, without a valid statutory delegation in favour of the Secretary, he is incompetent to hear and obviously cannot pass any order. As such the hearing which is to be given bythe Committee presided over by the Secretary has no authority or jurisdiction in the matter and therefore this Court should quash the constitution of the said Committee and also the procedure of hearing which is sought to be given by the said Committee. 25. Learned Counsel for the Petitioner further submitted that the 'State Government' has not been defined either under the Act or in the Rules of Business. Therefore under General Clauses Act, the said definition means 'Governor'. Here no hearing is given by the Govenror. The hearing by the Secretary is wholly incompetent. 26. Apart from that it was urged that assuming the Secretary has the authority to give hearing, ultimately the matter is to bedisposed of by the Chief Minister. But the Chief Minister does not give any hearing. Therefore, the person who hears does not decide. 27. In support of the aforesaid contentions, learned Counsel relied on an office Order dated 12.11.2001 issued by the Government of Orissa in the Department of Steel and Mines. The said order is to the following effect: Government of Orissa Department of Steel & Mines No. 12674/SM.Bhubaneswar, the 12.11.01. OE. Misc. 38/2001 OFFICE ORDER In supersession to this Department Office Order No. 7295/MG. dated 6.6.85, No. 13885/MG. Dt. 2.12.86 and No. 1461/MG. Dt. 28.1.87, No. 10867/24.9.90 and in pursuance of Clause (2) of instruction-3 of the instruction issued under Rule 14 of the Orissa Government Rules of Business made under Article 166 of the Constitution of India, the Chief Minister has been pleased to order that cases in the Department of Steel & Mines will be disposed of at different levels as indicated in detail in the statement annexed hereto. Sd. S.B. Padhi, Under Secretary to Government. Sd. S.B. Padhi, Under Secretary to Government. Along with the said Office Order there is a list of cases which are to be disposed of by the Chief Minister. Item No. 3 indicates the matters relating to mineral concessions for scheduled minerals. Learned Counsel submitted iron ore is a scheduled mineral and therefore, the aforesaid matter will come before the Chief Minister for disposal but he does not give a hearing. Therefore, the hearing given by the Secretary is of no consequence. In other words, effective hearing is not given to the Petitioner under the aforesaid procedure. In support of the aforesaid contentions of the learned Counsel for the parties, several decisions have been cited at the Bar. 28. The learned Counsel for opposite party No. 4 placed reliance on a judgment of the Hon'ble Supreme Court in the case of Rukmani Bai Gupta Vs. State Government of Madhya Pradesh, Bhopal and Others. That was also a case under the said Act. Of course it was in respect of a minor mineral. In that case a question arose whether an order of the Deputy Secretary, extending time for execution of a quarry lease under Rule 22 of the Madhya Pradesh Minor Mineral Rules, 1961, passed as a delegate of the Government, is an order of the State Government. Answering that question in the affirmative in paragraph 13 and at page 998 of the report, Justice Bhagwati (as his Lordship then was) clarified the position as follows: So far as Civil Appeal No. 613 of 1974 is concerned, the Appellant contended that the Deputy Secretary had no power to extend the time for the execution of the quarry lease in favour of Respondent No. 5 as no such power had been delegated to him by the State Government. But this contention is based on the erroneous assumption that the Deputy Secretary, in extending the time for the execution of the quarry lease, acted in exercise of the power purported to have been delegated to him by the State Government. The Deputy Secretary did not act as delegate of the State Government. He acted in exercise of the power of the State Government under the Rules of Business. The Deputy Secretary did not act as delegate of the State Government. He acted in exercise of the power of the State Government under the Rules of Business. The order made by him extending the time for the execution of the quarry lease was, therefore, an order of the State Government and no infirmity attached to it on the ground that the power to extend the time was not delegated. It appears that similar contentions are advanced here by the Petitioner. 29. Learned Counsel for the Petitioner, however, relied on a decision in the case of State of Haryana v. P.C. Wadhwa IPS Inspector General of Police and Anr. reported in AIR 1987 SC 120 and particularly referred to paragraph 10 of the said judgment in order to contend that the Rules of Business cannot override the statutory rules or provisions. In that judgment in paragraph 10 learned Judge held that the Secretary of the Home Department may be the head of the Home Department, but he cannot become the head of the Police Department contrary to Rule 1.2 of the Punjab Police Rules, 1934. Under Rule 1.2 of the said Rules, Inspector General of Police is the head of the Police Department. In the instant case, we are not concerned with any such situation. It is nobody's case that the Secretary of the Department while acting on behalf of the State Government is acting contrary to any Rules or provisions of the said Rules or even the Rules of Business. 30. Reference was also made by the learned Counsel for the opposite party No. 5 to the decision of the Hon'ble Supreme Court in the case of State of Goa and Others Vs. A.H. Jaffar and Sons, in order to contend that from the facts recorded in the said judgment it will appear that an application for lease of mining mineral was heard by the Commissioner and Secretary of the Industries Department of the Government of Goa as a delegate of the State Government by virtue of notification issued u/s 26 of the Act. 31. This Court cannot ascertain from the aforesaid recitals of facts whether questions similar to the present case was in issue in State of Goa. The Hon'ble Supreme Court did not give any finding on the same. 31. This Court cannot ascertain from the aforesaid recitals of facts whether questions similar to the present case was in issue in State of Goa. The Hon'ble Supreme Court did not give any finding on the same. The Hon'ble Supreme Court merely held that interference by the High Court with the order of the Government dated 14.1.1993 was not proper in view of clear statutory remedy under Rule 54 of the Mineral Concession Rules. The judgment of the Hon'ble Supreme Court did not at all decide the question with which we are concerned here, namely, whether the Secretary of the Government can hear on behalf of the State in the absence of any statutory delegation and consequently whether the order passed by the Secretary can be said to be an order passed by the State Government. This question was specifically raised and was answered by the Constitution Bench of the Hon'ble Supreme Court in the case of A. Sanjeevi Naidu, etc. Vs. State of Madras and Another, . 32. In that case the Secretary of a Department was hearing an application u/s 68(C) of the Motor Vehicles Act relating to a scheme of nationalization of certain bus route. In the aforesaid nationalization process the Government was to form an opinion in public interest whether there should be nationalization or not. The matter was assigned to the Secretary of the Department under the Rules of Business to hear. A question, similar to the present case, cropped up, namely whether a matter which is required to be heard by the State Government can be heard by the Secretary of the Department. In paragraph 12 at page 1106 of the report, Justice Hegde speaking for the unanimous Constitution Bench of the Supreme Court explained the working of the cabinet system of Government and also the responsibility of the Council of Ministers and said "when a civil servant takes a decision, he does not do it as delegate of his Minister, but he does it on behalf of the Government." Learned Judge further explained by saying that the Minister can always call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated either under the 'Rules' or the standing orders, can take decision "on behalf of the Government". Learned Judge made it clear that these officers are the limbs of the Government. 33. In coming to the aforesaid conclusion, learned Judge also relied on the decision of the Supreme Court in the case of Ishwarlal Girdharlal Joshi etc. Vs. State of Gujarat and Another. The learned Judge also referred to Halsbury's Laws of England Vol. I, 3rd Edn. at P. 170 where it has been observed as follows: Where functions entrusted to a Minister are performed by an official employed in the Minister's department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. Learned Judge also quoted principles of "Administrative Law" and also the view taken by Sir Ivor Jennings in his "Cabinet Government". 34. In view of such clear enunciation of the legal position by the Supreme Court, this Court has no hesitation in accepting that when the Secretary acts under the aforesaid officer order, such action of the Secretary is not contrary to the Scheme or Rules. Nor does the Secretary of the department act as a delegate of the Government, but the action of the Secretary amounts to an action of the Government. 35. The same question again came up for consideration before the Supreme Court in the case of Samsher Singh Vs. State of Punjab and Another. Here also the Constitution Bench of the Supreme Court speaking through Chief Justice A.N. Roy approvingly quoted the formulation of the principles in Halsbury's Laws of England, 4th Edn. Vol. 1 paragraph 748 at page 170. In paragraph 31 at page 2199 of the report the following passage from Halsbury's Laws has been approvingly quoted: ...Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because Constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister. The learned Chief Justice also relied on the decision of the Supreme Court in A. Sanjeevi Naidu (supra) and also on various other decisions and held in paragraph 31 at page 2199 of the report held as follows: ...Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because Constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister. Again in paragraph 35 at same page of the report, the learned Chief Justice held: ...The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for very action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil servants. The Minister lays down the policites. The Council of Ministers settle the major policies. When a Civil servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Ministry's department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. 36. In view of such authoritative and consistent finding of the Hon'ble Supreme Court, this Court does not find any merit in the contention of the Petitioner that in the absence of a statutory delegation u/s 26(2) of the said Act, the Secretary cannot hear the Petitioner when the statute provides that such hearing is to be given by the State Government. Such a contention, to say the least, is against the tenets of Cabinet system of Government under our Constitutional set up. 37. Relying on the decision of the Hon'ble Supreme Court in the case of Nageswara Rao (supra), the next question which has been urged is that the actual decision in this matter under the Rules of Business is that of the Chief Minister who does not give a hearing. As such the hearing given by the Secretary is of no consequence. 38. As such the hearing given by the Secretary is of no consequence. 38. Before this Court could answer that question, one has to realize that the facts in Nageswar Rao are totally different from the facts of the present case. In Nageswar Rao there was dispute between two parties, namely, Nageswar Rao on one hand and Andhra Pradesh State Road Transport Corporation and in that case the Petitioner Nageswara Rao was said to be deprived of his right of operating the transport service in certain bus route in the State of Andhra Pradesh. The State Government was called upon to hear the disputing parties and decide whether the scheme which was formulated u/s 68(C) of the M.V. Act can be made applicable to certain bus routes. The learned Judges in Nageswara Rao's case explained the scheme u/s 68(C) of the M.V. Act in some detail in paragraph 21 and while doing so the learned Judges held that the purpose of the scheme is to provide an efficient and economical transport service in public interest, but such scheme may affect individual rights such as the exclusion, complete or partial of other persons from the business in a particular route or routes. Therefore, the Supreme Court held that u/s 68(C) the proposed scheme may affect the existing proprietary rights of individual permit-holders doing transport business in a particular route or routes. After saying so, the learned Judges held "there are two parties to the dispute". The State Transport Undertaking, which is a statutory authority under the Act, threatens to infringe the rights of a citizen. The citizen may object to the scheme on public grounds or on personal grounds. He may oppose the scheme on the ground that it is not in the interest of the public or on the ground that the route which he is exploiting should be excluded from the scheme for various reasons. There is therfore, a proposal and an opposition and the third party, the State Government is to decide that his a prima facie it must do so judicially. The Court also held that it is made very clear in the scheme u/s 68C of the Act that the State Government must consider the objection and hear both the parties. 39. In the instant case, we are not concerned with such a situation. The Court also held that it is made very clear in the scheme u/s 68C of the Act that the State Government must consider the objection and hear both the parties. 39. In the instant case, we are not concerned with such a situation. Here a person applies for grant of prospecting or mining lease as the case may be and hearing is provided under Rule 12 and Rule 26. A perusal of Rule 12 and Rule 26 of the Rules makes it clear that such hearing is given by the State Government in order to ascertain the respective merit of the applicants. Here the applications do not have any pre-existing right and are not even asking for renewal. They are mere applicants for grant of initial licence. Therefore, there is no pre-existing right or even there is no legitimate expectation. Thus there is fundamental factual difference between the case of Nageswara Rao and in the present case. In the case of Nageswara Rao the proposed scheme contemplated invasion of existing proprietary rights of the operators as a result of nationalization scheme. Therefore, the objectors to such nationalization are objecting in defence of their existing rights. Here nothing of the kind takes place. It is of course true that while considering the applications either under Rule 12 of Rule 26 a hearing has to be given and it is given by the State Government. But this hearing of its own does not partake of nature of a quasi-judicial functioning by the State, specially when such hearing is given at the initial stage of the application for licence or lease. At that stage there is no preexisting or vested right of 'his' in favour of the applicant. (See the judgment of the Supreme Court in the case of State of Tamil Nadu v. Hind Stone (supra). 40. Now under the Constitutional Scheme of Cabinet, Governance a hearing given by the Secretary of the Department amounts to a hearing given by the concerned Minister to whom such business is allocated under the Rules of Business. It is not possible for the Minister concerned to give the hearing. As has been held in A. Sanjeevi Naidu (supra), in the discharge of various functions even the most hard working Minister cannot give to such hearing to a large number of applicants. It is not possible for the Minister concerned to give the hearing. As has been held in A. Sanjeevi Naidu (supra), in the discharge of various functions even the most hard working Minister cannot give to such hearing to a large number of applicants. Therefore, such hearing obviously has to be given by the Secretary of the Department. But it is always open to the Minister to call for the file as he has an over all power and control over the same (see paragraph 12). The same principle has also been reiterated in Samsher Singh. Therefore, after the applicant is heard and decision is taken by the Secretary, the file, under the Rules of Business, is placed before the Chief Minister merely for his appraisal and approval before issue of orders. No hearing by the Chief Minister is contemplated either under the Act or the Rules or in the scheme under the Rules of Business. Therefore, in view of different factual and legal context of the present case, the decision in Nageswara Rao is not attracted. 41. The other question which has been raised in the question of bias. Such a question has been vaguely raised. No particulars, far less sufficient particulars in support of such a plea have been given in the writ petition. Apart from that, while making the allegation of bias or malice, specific facts have to be pleaded against any particular Minister or officer. The Minister and officer against whom such allegations of bias or malice are to be pleaded must be impleaded by name as parti.es so that the charge of bias can be answered by those against whom such charges are slapped. Here no such sep has been taken in the writ petition. Therefore, omnibus allegation of bias cannot be investigated by the Court. Thus no case of bias or malice has been made out. 42. So far as the Petitioner's grievance about return of his application for prospecting licence after the same was recommended with the approval of the Chief Minister is concerned, this has been dealt with in paragraph 15 of the counter affidavit dated 8.1.2008 filed by the State. In paragraph 15 it has been specifically stated that the contention of the Petitioner that the petitione's application for prospecting licence dated 29.10.1991 is without defect is not correct at all. In paragraph 15 it has been specifically stated that the contention of the Petitioner that the petitione's application for prospecting licence dated 29.10.1991 is without defect is not correct at all. The said application had several defects which are pointed out in paragraph 15. It was also stated that the Government of India after scrutiny of the proposal returned the same for fresh examination along with other applications which were proposed to have been recommended but were rejected. Accordinlgy, the Petitioner was noticed under Rule 12(1) of the Rules to appear in person on 30.1.2001 and the Petitioner attended the personal hearing. The said action taken by the Government in 2001 has not been challenged by the Petitioner. Thus the said action of the Government in 2001 cannot be collaterally challenged in this writ petition in 2007. Such collateral and stale challenge without any explanation for the delay is not maintainable. In any event, the appropriate authority of the Government has not taken any final decision after the matter has been remanded by the revisonal authority for hearing by the State. Hearing is continuing. It is open to the Petitioner to appear before the Secretary in connection with his application for hearing. No final decision has been taken by the Secretary, So going by these facts. it cannot be said that the Petitioner's case at the moment is ripe for interference by this Court, however, this Court considered all the points discussed above, since questions were raised about the competence and legality of the hearing process. 43. For the reasons discussed above, this Court is of the opinion that there is no merit in this writ petition and all the contentions of the writ Petitioner fail. The writ petition is dismissed. There would be no orde as to costs. B.N. Mahapatra J. 44. I agree. Final Result : Dismissed