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2013 DIGILAW 289 (RAJ)

Hari Singh v. State of Rajasthan

2013-02-04

VINEET KOTHARI

body2013
Hon'ble KOTHARI, J.—The petitioner Hari Singh S/o Sh.Samudra Singh has filed this writ petition in this Court on 18.12.2007 challenging the impugned order Annex. 2 dtd. 26.9.2006 passed by the Additional Director (Mines), Jodhpur and order (Annex. 4) dtd. 24.4.2007 passed by the Revisional Authority, namely, Dy. Secretary (Mines), Jaipur refusing to grant renewal of the mining lease No. 128/95 for 9 hectares of mining are situated at Khojo Ki Dhani, Tehsil Bilara, Dist Jodhpur for mining of lime stone. 2. The said mine was initially granted in favour of the petitioner on 1.4.1986 and a lease-deed of 10 years was executed in his favour, which was extended upto 20 years vide order dtd. 10.10.1996. The renewal of said mining lease was due on 31.3.2006. The petitioner applied for renewal of said mining lease on 10.8.2006 after a delay of about 4 months, but since the renewal application was not filed within one year prior to the date on which the said mining lease was to expire on 31.3.2006, the possession of the said mine was taken over by the respondent-Mining Department on 3.4.2006 itself, with a few days of expiry of the period. 3. However, an order was passed much later by the Additional Director (Mines), Jodhpur on 26.9.2006 (Annex. 2), whereby forfeiting the renewal fee paid by the petitioner, the mining lease in question was cancelled. The petitioner took the matter before the revisional authority who also dismissed the revision petition filed by the petitioner vide Annex. 4 dtd. 24.4.2007. 4. The petitioner explained before the Revisional Authority that the delay of 4 months took place on account of long illness of petitioner Hari Singh and he also submitted that in view of Rule 17(2) of the Minor Mineral Concession Rules, 1986 (hereinafter referred to as the Rules of 1986),the lease could be renewed and the delay of four months could be condoned upon taking the penalty prescribed under Rule 17(2) of the said Rules specially when the mining lease area was not declared vacant and allotted to any third party by that time and that the petitioner had spent a huge sum and invested therein for development of the mine for last 20 years. However, the Revisional Authority dismissed his revision petition simply reiterating the grounds given in the impugned order Annex. 2 dtd. However, the Revisional Authority dismissed his revision petition simply reiterating the grounds given in the impugned order Annex. 2 dtd. 26.9.2006 of Additional Director that since there was delay in filing of renewal application on 10.8.2006, therefore, the delay could not be condoned and the revision petition was also dismissed. Aggrieved by these two orders, the petitioner, therefore, preferred the writ petition before this Court. 5. The learned counsel for the petitioner Mr. DLR Vyas submitted that in 20 years of lease period, the petitioner had made huge investment on the said mining area and had made quarters for labours and had also laid the road for approximately 1 km and thus, lacs of rupees were spent on the development of the said mining area, whereas the short delay of 4 months caused in filing of the renewal application was caused on account of illness of the petitioner Hari Singh and therefore, the delay deserves to be condoned in these circumstances and atleast the authorities below could have renewed the same upon payment of penalty prescribed under Rule 17(2) of the aforesaid Rules. He submitted that neither of the authorities invoked Rule 17(2) and ignoring the same have just cancelled the mining lease causing serious prejudice to the petitioner and the authorities below have passed these orders without giving an a reasonable opportunity of hearing to the petitioner as well. He also submitted that Rule 17(3) of the MMCR on the contrary envisages that if the application for renewal is filed within the time, namely, within a period of one year prior to expiry date and if such renewal application is not decided by the concerned authority before expiry of lease period, then the deemed renewal of such mining lease is provided till the authority concerned decided otherwise. 6. The learned counsel for the petitioner also relied upon two judgments of this Court in the case of Abdul Kariam vs. State of Rajasthan and Ors. 6. The learned counsel for the petitioner also relied upon two judgments of this Court in the case of Abdul Kariam vs. State of Rajasthan and Ors. reported in 2006 WLC (Raj.) UC 277 and Zakir Hussain vs. Union of India and Anr.- SBCWP No. 1627/1983 decided on 21.7.1994 and submitted that these judgments have been rendered relying upon the Supreme Court decisions and consequently, the respondents could not have rejected his application for renewal of mining lease especially ignoring Rule 17(2) of MMCR, 1986 and renewal of mining lease deserves to be granted, subject to the payment of dead rent for period of litigation after expiry of mining lease on 31.3.2006. 7. On the other hand, Mr. R.K. Soni, learned counsel for the respondents submitted that admittedly, the application was filed beyond the period prescribed under Rule 8(2) of the MMCR, 1986. No sufficient reasons were adduced by the petitioner and lame excuse of illness without furnishing any medical evidence was submitted before the authorities below and therefore, they cannot be faulted in rejecting the renewal application in exercise of their jurisdiction. He also submitted that the petitioner did not submit the application accompanied by the amount of penalty under Rule 17(2) of the MMCR, 1986 and therefore, such renewal could not be granted. Thus, he justified and supported the impugned orders. He, however, could not controvert the judgments rendered by the coordinate Bench of this Court as cited by the learned counsel for the petitioner. 8. I have heard the learned counsels for the parties, perused the record of the case and the judgments cited at the bar. 9. Rule 8 and Rule 17 of the MMCR, 1986 are quoted below for ready reference: "8. 8. I have heard the learned counsels for the parties, perused the record of the case and the judgments cited at the bar. 9. Rule 8 and Rule 17 of the MMCR, 1986 are quoted below for ready reference: "8. Disposal of applications for the grants and renewal of the mining lease:- (1) An application for grant of mining lease shall be disposed of by the competent authority; Provided that before grant of mining lease, the competent authority shall issue letter of intent to the applicant found eligible for grant of mining lease and require to submit consent to establish from Pollution Control Board, environment clearance, mining plan duly approved by the authorised officer of the Central/State Government or such other document as he may deem fit, within a period of six months; Provided further that the above period of six months may be extended by the competent authority subject to payment of lat fees at the rate of 9% of annual dead rent for every month or part thereof such extended period; (2) An application for renewal of mining lease shall be made at least 12 months before the expiry of the mining lease and shall be disposed of before the expiry of lease and if the application is not disposed of within that period, the lease shall be deemed to have been extended by a further period till final orders are passed on the renewal application by the competent authority. Provided that the mining lease for mineral bajri, shall not be renewed. Provided further that after 31.12.2013, during extended period, no mining operation shall be carried out or allowed to be carried out by the lessee till the lease is renewed." 17. Renewal of Mining Lease:- (1) On an application being made in this behalf and where such application is found complete in all respect, the competent authority shall renew the mining lease for a period not exceeding 30 years and where the competent authority is satisfied that mines have been worked properly and that substantial investment in machinery and equipment have been made by the leassee, the competent authority may further grant subsequent renewals each for a period upto 30 years subject to the condition that total period of the lease shall not exceed 90 years. Provided that the mining lease for mineral bajri shall not be renewed. Provided that the mining lease for mineral bajri shall not be renewed. Provided further that where the lease is so renewed the dead rent shall be revisable after every five years from the date of renewal according to the formula given under Rule 18(3) for revision of dead rent. Provided further that the competent authority while granting the renewal of mining lease may in its discretion reduce the area of the lease so that the area sanctioned to the lessee shall in no case exceed 10 sq. Kms. Provided also that where lessee applies for renewal after reducing the original area in more than one blocks, in such cases renewal of reduced area in more than one block may be allowed subject to condition that every block to be renewed shall not be less than the prescribed size. (2) where the application for renewal has been received after the period prescribed in rule 8(2), it shall be entertained on the payment of the following penalties: Period of Delay Amount of Penalty (a) Up to one month 1% of the existing annual dead rent subject to a minimum of Rs. 500.00 (b) Up to two months 2% of the existing annual dead rent subject to a minimum of Rs. 1000.00 (c) Up to three months 3% of the existing annual dead rent subject to a minimum of Rs. 1500.00 (d) Up to 6 months 10% of the existing annual dead rent subject to a minimum of Rs. 3000.00 (e) more than 6 months but before expiry of lease 25% of the existing annual dead rent subject to a minimum of Rs.10000.00 (3) Notwithstanding anything contained in the instrument of the mining lease, if the application for renewal has not been disposed of before the expiry of the lease it shall be deemed to have been extended by a further period till the competent authority passed order thereon. The dead rent after expiry of lease period shall be as per the revised dead rent referred to in sub rule (3) of Rule 19. Provided that after 31.12.2013, during the extended period, no mining operation shall be carried out or allowed to be carried out by the lessee till the lease is renewed. The dead rent after expiry of lease period shall be as per the revised dead rent referred to in sub rule (3) of Rule 19. Provided that after 31.12.2013, during the extended period, no mining operation shall be carried out or allowed to be carried out by the lessee till the lease is renewed. (4)(a) In case of renewal of mining lease after the expiry of the lease period, the dead rent from date of expiry of the previous lease to be date of execution of the renewed lease deed shall be as per the sanction of renewal. (b) In case of revocation of the sanction for renewal on failure of execution of the lease agreement by the lessee, the dead rent as per sanction for the renewal be charged from the date of expiry of the previous lease to the date of taking over possession. (5) The competent authority may, while granting renewal of a mining lease, impose conditions relating to mechanization, development of mines and establishment of mineral based industry after obtaining prior approval of the Government by a general or specific order." 10. In the case of Zakir Hussain vs. Union of India (supra), the coordinate bench of this Court relying upon two Supreme Court decisions has held as under. "6. It has been observed in Nand Lal Jain vs. State of Bihar, 1980(3) SCC 317 para 2 as follows: "It, however, appears from the order dated June 7, 1974 passed by the Central Government in another case No. MV-(556/78),that, in appropriate cases, the Central Government has the power to condone the delay caused in applying for renewal of the licence. If that be so, we do not appreciate for what special reasons the delay in the instant case could not be condoned by the Central Government." 7. It has been observed in M/s. Harkaran Das Mangilal vs. Union of India, AIR 1981SC 1734 para 2, as follows:- "It, however, appears from the order dated June 7, 1974 passed by the Central Government in another case No. MV-1/5567/78), that, in appropriate cases, the Central Government has the power to condone the delay caused in applying for renewal of the licence. If that be so, we do not appreciate for what special reasons the delay in the instant case could not be condoned by the Central Government. 8. These weighty observations fully apply in this case. If that be so, we do not appreciate for what special reasons the delay in the instant case could not be condoned by the Central Government. 8. These weighty observations fully apply in this case. The facts and circumstances of the case relied upon by the learned counsel for the respondents are quite different and distinguishable. It does not help them in any way. The writ petition deserves to be allowed. 9. Accordingly, this writ petition is allowed with costs. The delay occurred in moving application for the renewal of the lease is condoned. The State Government will duly consider the petitioner's application for renewal of the lease within a month from today." 11. Another coordinate bench of this Court in the case of Abdul Karim vs. State of Rajasthan and Ors. (supra) in para 7 to 9 held as under: "7. I have examined the order passed by the Additional Director as well as by the revisional authority. The Additional Director (Appellate Authority) after taking into consideration the fact that the petitioner was suffering from serious ailment and that he invested huge amount in removing overburden, constructing roads and in making advance payments to the labourers, condoned the delay and renewed the mining lease. The revisional authority reversed the order of the appellate authority on the ground that the mining area was declared vacant, therefore, delay was erroneously condoned. The revisional authority while altering decision of the appellate authority failed to appreciate that in pursuant to the order dated 12.8.1996 the renewal was already made on 24.9.1986 and the contract too was executed on 17.12.1996 and it was also registered on 17.12.1996. The application for renewal was also submitted prior to declaration of the area concerned vacant, as such there was no occasion to reverse the order passed by the appellate authority. The appellate authority exercised jurisdiction vested with it judiciously by taking into consideration the facts available on record and after reaching at the conclusion that there were reasons sufficient to condone delay. The revisional authority should always be slow in interfering with such discretionary order. 8. Looking to all the facts and circumstances of the case I am of the considered opinion that the revisional authority erred while interfering with the order dated 12.8.1996 passed the appellate authority i.e. the Additional Director (Mines), Jodhpur Zone, Jodhpur. 9. Accordingly, this petition for writ is allowed. 8. Looking to all the facts and circumstances of the case I am of the considered opinion that the revisional authority erred while interfering with the order dated 12.8.1996 passed the appellate authority i.e. the Additional Director (Mines), Jodhpur Zone, Jodhpur. 9. Accordingly, this petition for writ is allowed. The order dated 22.7.1997 (Anx. 2) is quashed and the order dated 12.8.1996 passed by the appellate authority i.e. Additional Director (Mines), Jodhpur Zone, Jodhpur is restored. 10. No order as to costs." 12. A bare perusal of the impugned orders passed by the two authorities below, namely, Additional Director (Mines), Jodhpur and revisional Authority- Dy.Secretary (Mines), Jaipur in the present case, shows that they have simply ignored the provisions of Rule 17 (2) of the MMCR, 1986. It is true that the application for renewal ought to have been filed within a period of 12 months before expiry of lease period, which in the present case was 31.3.2006, but the same was filed on 10.8.2006 with the delay of 4 months and 10 days approximately, but at the same time, on such delayed application too, the respondents have to deal with such application under Rule 17 of the Rules. Rule 17(2) of the MMCR, 1986 clearly prescribes that if such applications are received after the period prescribed under Rule 8(2), the same can be entertained on payment of penalties and the delay of 6 months is condonable and application is maintainable upto payment of 10% of existing annual dead rent subject to minimum of Rs. 3000/-. There is no requirement under Rule 17(2) of the Rules that such amount of penalty has to be tendered before hand with the delayed renewal application itself and unless it is so tendered at the time of applying for renewal of lease even though belatedly, such application cannot be entertained at all. The petitioner in the present case was not called upon at all to pay the penalty amount under Sec. 17(2) to allow his application thought belated to be maintained and considered on merits. The petitioner in the present case was not called upon at all to pay the penalty amount under Sec. 17(2) to allow his application thought belated to be maintained and considered on merits. On the other hand, Rule 17(3) of the Rules envisages a situation in which notwithstanding anything contained in the instrument of the mining lease, if the application for renewal has no been disposed of before the expiry of the lease it shall be deemed to have been extended by a further period till the competent authority passes an order thereon. The dead rent after expiry of lease period shall be as per the revised dead rent referred to in sub-rule (3) of Rule 18. 13. While it is true that such deemed renewal will continue only till the date of passing of order by the competent authority, but such competent authority cannot betray a non-application of mind to Rule 17(2) of the MMCR, 1986 altogether. The said authority has to assign reasons in the order refusing the renewal of mining lease, as to why upon payment of penalty by the applicant also, rejection of application for renewal is a better course of action and how interest of Revenue is protected or better served by rejection of the renewal application, particularly in a case where delay is caused by a genuine reason. If such reasons assigned for delay are supported with evidence, the authority concerned is also expected to express his opinion as to unsustainability of the reasons or facts given for rejecting the renewal application on the basis of given reasons. Both these aspects have not been dealt with by the authority concerned in the impugned orders in the present case. There is neither any mention of Rule 17(2) in the impugned order by the competent authority-Additional Director (Mines) or even the revisional authority Dy. Secretary nor the reasons assigned in the application filed with delay on account of claimed long illness of petitioner have been dealt with. Though it appears that the petitioner did not adduce any evidence in support of his reasons assigned, namely, long illness before the authority concerned, but at the same time, the authorities have also failed to give any findings in this regard while rejecting the renewal application and they have not stated anything about the flimsiness or unsustainability of these reasons. Though it appears that the petitioner did not adduce any evidence in support of his reasons assigned, namely, long illness before the authority concerned, but at the same time, the authorities have also failed to give any findings in this regard while rejecting the renewal application and they have not stated anything about the flimsiness or unsustainability of these reasons. The revisional authority did grant an opportunity of hearing to the petitioner as the impugned order Annex. 4 dtd. 24.4.2007 indicates that the applicant Hari Singh himself was present before him on the date of said order and therefore presumably he was heard in the matter, but this Court is not satisfied with the application of mind by the authority concerned or rather absence of it for not invoking Rule 17(2) of the MMCR as to why the delay in filing renewal application could not be condoned upon payment of amount of penalty prescribed under Rule 17(2) of the MMCR and the petitioner was not given an opportunity to pay such penalty and get his renewal application considered on merits. From the impugned orders and arguments of the petitioner, It also appears that the said mining lease was not declared vacant, nor any allotment in favour of any third party was made even though the possession of the same was taken over by the respondent-Department soon after expiry of period on 3.4.2006 itself. This Court while entertaining the writ petition had granted interim relief in favour of the petitioner on 7.1.2008 to the effect that "in the meanwhile, status quo as it exists today shall be maintained regarding mining area in question," but between 3.4.2006 and grant of stay order on 7.1.2008, there was a gap of 20 months, but nothing was done during this period by the Mining Department. The respondent Department had good period of more than 1 and 1/2 years from 3.4.2006 to 7.1.2008 to proceed in the matter and grant such mining lease in favour of third party, if they wanted to do it, but without undertaking any such process, they simply refused the renewal application of the petitioner that too escaping the provisions of Rule 17(2) of the MMCR, 1986. 14. 14. The period of one year prescribed for applying for renewal in Rule 8(2) does not prescribe for any automatic cancellation of mining lease after expiry of lease period which is 31.3.2006 in the present case. On the other hand, the renewal applications are supposed to be dealt with in terms of Rule 17 quoted above. Deemed renewal upto the date when the authority concerned passes orders on renewal application, if they are filed in time and thereafter upon payment of penalty under Section 17(2) is time and thereafter upon payment of penalty under Section 17(2) is envisaged in the Rules. Sub Rule (5) of Rule 17 also provides that the competent authority may while granting the renewal of mining lease may even impose the conditions after obtaining prior approval of the Government by a general or specific order. Thus, the mining lease granted for a period of 10 to 20 years is not expected to be brought to a sudden end in the hands of lessee, but a prior and due procedure has been prescribed in the Rules for dealing with such renewal applications. The lessee in the past period of subsisting lease might have made investment in the leased area to develop the same, the full benefit of which was to accrue to him in the subsequent period for which renewal of lease is sought. 15. In the present case however, this Court finds that the renewal application with delay of 4 months has been rejected without assigning any proper and cogent reasons by the authorities below. Unfortunately by these kind of cryptic and laconic orders, the litigation has been stretched for last six years, but mining area itself has remained undeveloped and idle. Neither any development work could be undertaken by the petitioner nor the Department took any action to allot the lease to any other party causing loss of valuable national resources. In the opinion of this Court, it is high time when the quasi judicial authorities passing these kinds of orders are put to terms and are fixed with the personal responsibility, it they chose to ignore the relevant statutes or exercise their quasi-judicial discretion in a cryptic and arbitrary manner. This case is a glaring example of same. Therefore, this Court is inclined to impose costs of Rs. 5,000/- on each of the authorities who passed the two impugned order in question viz. This case is a glaring example of same. Therefore, this Court is inclined to impose costs of Rs. 5,000/- on each of the authorities who passed the two impugned order in question viz. Additional Director (Mines), Jodhpur (Mr. P. Gehlot, name is not clear in the impugned order and Mr. Niranjan Prasad Sharma, Dy. Secretary (Mines), Jaipur. They shall pay the costs of Rs. 5,000/- each in State Treasury within a period of one month from the receipt of this order. The proof of such deposit by them be filed before this Court in the present case. 16. Accordingly, this writ petition is allowed. The Order Annex. 2 dtd. 26.9.2006 and order dtd. 24.4.2007 (Annex. 4) are quashed and the respondent-Additional Director (Mines), Jodhpur is directed to pass afresh appropriate orders in accordance with law after the petitioner deposits the amount of penalty for delay of 4 months and 10 days in filing the renewal application which he should deposit within two weeks from today and the Additional Director (Mines), Jodhpur shall pass fresh orders within a period of two months from the receipt of certified copy of this order. A copy of this order be sent to all the concerned parties forthwith.