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Rajasthan High Court · body

2012 DIGILAW 126 (RAJ)

Kum. Lalita Chaudhary v. State of Raj.

2012-01-10

AJAY RASTOGI

body2012
Judgment : Instant petition is directed against the order passed by the Mining Engineer dt.08.01.2002 revoking the grant of mining lease sanction in favour of the petitioner vide order dt.28.06.2001 without affording opportunity of hearing and the appeal/ revision which he preferred before the authorities were also rejected by the Additional Director (Mines) and the State Government vide their orders dt.22.08.2005 & 03.07.2006 respectively. It has been alleged in the writ petition that petitioner applied for grant of mining lease for mineral masonry stone for an area of 9997.1 sq. meters near village Khatehpura, Tehsil & District Jhunjhunu and after complying with the formalities mining lease came to be sanctioned in favour of the petitioner by the competent authority vide its order dt.28.06.2001 on certain terms & conditions incorporated in the sanction order itself and endorsement thereof was also made by the Mining Engineer to the District Collector, Jhunjhunu for grant of NOC. However, there is a deemed clause that if he fails to send his NOC within a period of thirty days it will be presumed that NOC has been granted by him. Admittedly within a period of thirty days from the sanction order dt.28.06.2001 no NOC was granted from the office of the District Collector and by deemed fiction in terms of clause (3) of the sanction order dt.28.06.2001 the authority could have drawn presumption of NOC being granted by the authority i.e. the District Collector but the District Collector refused to grant NOC vide its communication dt.04.01.2002 primarily on the premise that mining lease has been sanctioned over khasra no.124 Village Khatehpura and nearby mining lease area there is a Mazar and on its western side there is a senior secondary school and a puccka pond also, taking note thereof NOC was declined and taking into consideration the later communication of the District Collector dt.04.01.2002, the Mining Engineer at its own revoked the sanction order dt.28.06.2001 vide its order dt.08.01.2002 and admittedly no opportunity of hearing was afforded to the petitioner before the order dt.08.01.2002 came to be passed by the Mining Engineer. The petitioner being aggrieved by the order of revocation dt.08.01.2002 preferred appeal U/r 43 of Rajasthan Minor Mineral Concession Rules,1986 (“Rules,1986”). The petitioner being aggrieved by the order of revocation dt.08.01.2002 preferred appeal U/r 43 of Rajasthan Minor Mineral Concession Rules,1986 (“Rules,1986”). However, by cryptic order without assigning any reasons the appeal preferred came to be dismissed on 22.08.2005 against which the petitioner preferred further revision U/r 47 of the Rules,1986 and that was also rejected on 03.07.2006. The bone of contention of counsel for petitioner is that once the mining lease was granted presumption could be drawn that all formalities required has been meted out provided under the Rules of 1986 and that being so once the mining lease was sanctioned by the competent authority vide its order dt.28.06.2001 it could not have been revoked without affording opportunity of hearing to the petitioner and denial thereof is in clear violation of principles of natural justice and post decisional hearing despite objection being raised by the petitioner was also not afforded either at appellate or revisional stage and in such circumstances the orders impugned herein are not legally sustainable in the eye of law and deserve to be quashed. He further submits that once the mining lease stood sanctioned there is no provision for seeking NOC from the office of District Collector. However, after the lease deed is executed and permission is granted to the lease holder to undertake mining operations he is under obligation to comply with the conditions referred to U/r 18 of the Rules,1986. Counsel submits that U/r 18(26) of the Rules,1986 the legal obligation is upon the lessee/lessees not to carry on work or allow to work at any point within the distance of 45 meters from any railway line except with the previous written permission of the Railways Administration concerned, or from any reservoir, canal or other public works or buildings or inhabited site except with the previous permission of the Collector or any other officer authorized by the Government in this behalf and if at all what was pointed out by the District Collector in its order refusing to grant NOC dt.04.01.2002 restrictions are to be followed by the lease holder while the mining lease agreement/deed being executed as referred to U/r 18(26) of the Rules,1986 but merely because there is an educational institution or a Mazar at a nearby distance that itself could not be considered to be sufficient for revocation of grant of mining lease dt.28.06.2001. He further submits that action of the respondent is also discriminatory which he has pointed out in para 6(d) of the petition that lease holders of mining no.1/96 as well as 2/96 as alleged are running their mining operations which are almost at the same distance but the local residents have not raised any objection regarding mining operations being carried out by the lease holders of ML no.1 & 2 of 1996 they have been allowed to excavate and undertake mining operations but so far as case of the present petitioner is concerned despite she being similarly situated her letter of sanction has been revoked on the said premise and despite this fact being pointed out by the petitioner neither the appellate nor the revisional authority has considered and that being so the action of the respondents is discriminatory and in violation of Article 14 of the Constitution. Reply to the writ petition has been filed and it has been averred that after the mining lease was sanctioned on 28.06.2001, the District Collector refused to grant NOC vide its letter dt.04.01.2002 and taking note thereof, no error was committed by the Mining Engineer in revoking the sanction order vide its order dt.08.01.2002 and no right could be conferred upon the petitioner merely on the letter of sanction being issued in her favour by the authority. It has been further averred that even from the fact finding report prepared by the Mining Engineer, copy of which has been placed on record as Annex.5, that too discloses that adjacent to the mining lease area sanctioned in favour of the petitioner, there is a Mazar of muslim community and in the western side there is a Durga Mandir Senior Secondary School and a Pucca pond also and thus the area being surrounded, it was not considered appropriate by the District Collector to grant NOC and in such circumstances no error was committed by the Mining Engineer in revoking the order of sanction dt.28.06.2001 vide its order dt.08.01.2002. Counsel for respondent further submits that at the stage when the appeal was preferred by the petitioner opportunity was available to make submissions and that was availed at the appellate and the revisional stage and that being so there was no denial of principles of natural justice. Counsel for respondent further submits that at the stage when the appeal was preferred by the petitioner opportunity was available to make submissions and that was availed at the appellate and the revisional stage and that being so there was no denial of principles of natural justice. He further submits that grant of mining lease does not confer rights in favour of the petitioner, in absence whereof there was no requirement to comply with the principles of natural justice when the authority took decision to revoke the order of sanction vide order impugned dt.08.01.2002. This Court has heard counsel for the parties and with their assistance examined the material on record. The petitioner submitted her application for grant of mining lease on 27.08.1999 for mineral masonry stone and certainly presumption can be drawn that after the application was submitted by the incumbent the authority competent has looked into the requirement to be complied with for the purpose of grant of mining lease provided under the scheme of Rules,1986 and only thereafter the mining lease was sanctioned in favour of the incumbent vide order dt.28.06.2001. It will be relevant to record that apart from other conditions referred to in the sanction order, under clause 9(3) there is a stipulation that within 45 days from the order of sanction, mining lease deed is to be executed failing which the order of sanction shall automatically stand revoked and at the same time while the endorsements being made to to the various authorities under item 3, copy was also sent to the District Collector to communicate its decision for grant of NOC within a period of 30 days, failing which presumption would be drawn that NOC has been granted and the conditions (supra) being relevant for the purpose reproduced ad infra:- Admittedly it was not the case of the respondent that after the order of sanction being issued on 28.06.2001 the petitioner at any stage was at fault in not complying with the conditions/requirement provided under the Rules of 1986 and within the period of 45 days the respondents were under obligation to execute the mining lease deed and no material has came on record by which this Court can infer that the lease could not be executed for sufficient reasons within the period stipulated referred to in the letter of sanction dt.28.06.2001 and so far as grant of NOC from the office of District Collector is concerned, the period stipulated was thirty days and admittedly the District Collector refused to grant NOC vide its order dt.04.01.2002 much after the period of 30 days referred to in the order of sanction dt.28.06.2001 and as such presumption can be drawn that admittedly the petitioner was not at fault at any point of time and the respondents failed in discharge of their obligation to execute the mining lease deed and NOC by deeming fiction stands granted but at this stage when the petitioner was pressing hard to get the mining lease deed executed in terms of the order of sanction dt.28.06.2001 the District Collector refused to grant NOC on 04.01.2002 and four days thereafter the competent authority revoked the order of sanction vide its order dt.08.01.2002, admittedly before passing of the order impugned by the authority regarding revocation of the order sanction order dt.28.06.2001 no opportunity of hearing was afforded to the petitioner. Once there was order of sanction granted to the petitioner vide order dt.28.06.2001, in the opinion of this Court that certainly confers civil rights in favour of the incumbent since further consequential action was to be carried out in furtherance of order of sanction and that being so rights are certainly conferred and if the authority was of the view that there was any error or violation of scheme of Rules,1986, it was under obligation to afford opportunity of hearing to the petitioner, in absence whereof the order impugned dt.08.01.2002 regarding revocation of grant of sanction dt.28.06.2001 passed by the competent authority in the opinion of this Court was in violation of principles of natural justice and this Court finds substance in the submission made by counsel for petitioner that no post decisional hearing in the facts of the case would have cured the basic defect in the order of revocation passed by the competent authority dt.08.01.2002 and that being so the very action initiated by the respondent regarding revocation was not legally sustainable in the eye of law and deserves to be quashed. But the case would not rest here and this Court would like to examine on merits as well since the order was passed way back in 2002 and almost a decade has rolled pending litigation, hence considers it appropriate to examine on merits as well and parties were afforded opportunity to address this Court. The root cause which was taken note of by the respondent for passing of order of revocation was the letter of District Collector refusing to grant NOC dt.04.01.2002 and the reasons assigned being relevant for the purpose are reproduced ad infra : The letter (supra) clearly indicates that the factual statement made by the District Collector in its communication was that the proposed mining lease has been sanctioned for khasra no.124 Village Khatehpura and at a nearby place there is Mazar of muslim community and in the western side there is educational institution and on the site of the proposed sanctioned area there is a pucca pond and part of proposed area is on the hill area and that was the sole basis taken note of by the authority while revoking the order of sanction dt.28.06.2001 vide its order dt.08.01.2002 and the appellate & revisional authority have refused to interfere in the order of revocation dt.08.01.2002. The mining lease holder is under legal obligation to comply with the conditions referred to U/r 18(26) of the Rules,1986. It will be relevant to record that R.18 is a composite clause where every mining lease holder is under legal obligation to comply with such of the conditions if included in the lease document or not and even if it has not been included still all such conditions referred to U/r 18 shall be deemed to be included as part of the lease document executed between the parties and R.18(26) being relevant for the purpose reads ad infra : “The lessee / lessees shall not work or carry on or allowed to be worked or carried on at any point within a distance of 45 meters from any railway line except with the previous written permission of the Railway Administration concerned or from any reservoir, canal or other public works or buildings or inhabited site except with the previous permission of the Collector or any other officer authorised by the Government in this behalf and otherwise than in accordance with such instructions, restrictions and conditions either general or special as may be attached to such permissions. The said distance of 45 meters shall be measured in the case of railway, reservoir or canal horizontally from the outer toe of the bank or the outer edge of the cutting as the case may be and in case of a building horizontally from the plinth thereof. Explanation: for the purpose of this clause: (1) The expression “Railway Administration” shall have the same meaning as defined in the Indian Railways Act, 1989 by sub-section 32 of section 2 of that Act. Explanation: for the purpose of this clause: (1) The expression “Railway Administration” shall have the same meaning as defined in the Indian Railways Act, 1989 by sub-section 32 of section 2 of that Act. (2) “Public Road” shall mean a road which has been constructed or artificially surfaced as distinct from a track resulting from repeated use.” The provision (supra) clearly indicates that lessee or lessees shall not work or allow to be worked at any point at a place being within a distance of 45 meters from any railway line except with the previous written permission of the Railway Administration concerned or from any reservoir, canal or other public works or buildings or inhabited site except with the previous permission of the Collector or any other officer authorised by the Government in this behalf and in the facts of the instant case even if what has been pointed out by the District Collector in its letter refusing to grant NOC dt.04.01.2002 if taken note of that there was a Mazar or educational institution or pucca pond at the nearby place of the mining lease sanctioned, the petitioner was under an obligation not to carry out mining operations within the distance of 45 meters towards the side referred to by the District Collector in its letter and to comply with these conditions irrespective of the fact whether it was incorporated in the lease agreement or not and that being so what was referred to by the District Collector in its letter refusing to grant NOC dt.04.01.2002, the petitioner was under legal obligation not to carry out mining operations after the lease deed being executed within distance of 45 meters from the relevant site but that could not be considered to be the basis for revocation by the Mining Engineer vide its order dt.08.01.2002 and this Court would further like to record that under the scheme of Rules,1986 lease has to be granted by the department of mines and petitioner is under legal obligation to comply. However, the NOC has to be obtained from the office of the District Collector for verification since the mining area falls within jurisdiction of the District Collector and he being the custodian his NOC is required which may assist the authority to take further action but if the District Collector has failed in discharge of its obligation to grant NOC within stipulated period of 30 days by deemed fiction it will be presumed that sanction has been granted and that being so any later decision would not have annuled the action of the department and in the instant case since the District Collector failed in taking decision either for grant or rejection of NOC within 30 days of letter of sanction dt.28.06.2001, certainly presumption would be drawn of NOC being granted and in such circumstances further action taken by the respondent regarding revocation vide order dt.08.01.2002 based on the letter of District Collector dt.04.01.2002 cannot be held to be justified in the eye of law. However, this Court finds substance in the further submission made by the counsel for petitioner that apparently two mining lease-1/1996 & 2/1996 which are also being sanctioned are at nearby place and at the same distance as evident from the site plan (Annx.7) of which this Court can certainly take judicial notice and there appears no justification in creating the legal hasel so far as the mining lease no.41/1999 which was sanctioned in favour of the petitioner on 28.06.2001 is concerned and even no reasonable explanation has come out even in the reply filed by the respondents in absence whereof certainly action of the respondents appears to be discriminatory and in violation of Article 14 of the Constitution. Consequently, the writ petition succeeds and is hereby allowed. The impugned orders dt.08.01.2002, 22.08.2005 & 03.07.2006 are hereby quashed and set aside. The respondents are directed to initiate further action regarding execution of mining lease in terms of letter of sanction dt.28.06.2001 in accordance with law. The respondents shall ensure compliance of the judgment within two months. No costs.