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2017 DIGILAW 662 (JHR)

Sesa Resources Ltd. v. State Of Jharkhand

2017-04-10

APARESH KUMAR SINGH

body2017
JUDGMENT Aparesh Kumar Singh, J. Heard counsel for the petitioner and learned Advocate General for the State. 2. One M/s V.S. Dempo & Company Pvt. Ltd., Panaji, Goa sought permission under Section 49(3) of the Chotanagpur Tenancy Act, 1908 from the Deputy Commissioner, West Singhbhum, Chaibasa to purchase pieces of land contained in Mauza Dimboli, Thana No.86, Khata No.221 and 94, Plot Nos. 1138, 1100, 1001, 1110, 1115 and 471 having different areas totaling 2.65 acres. That consent was accorded vide order dated 20th March, 2007 in T.A. Misc. Case No.09/2006-07 by the respondent no.2 with certain conditions one of it being that petitioner should establish the proposed industry within a period of five years failing which the consent to transfer would in itself stand annulled and the lands in question would have to be returned back to the land owners/vendors. Petitioner moved an application on 21st March 2013 before the Deputy Commissioner, West Singhbhum, Chaibasa for extension of time citing various reasons inter-alia in paragraph-5 and 6 of the application which are as follows :- "5. That the company could not commence construction of plant on the following amongst the other grounds :- (a) That the purchase lands are not in contiguous which are in scattered way. (b) That there are also some governments lands in the project areas which are also required for installing plant. The company has prayed for settlement of the same. The file is pending before the Circle Officer, Manoharpur. (c ) That several applications filed before this learned court seeking permission under section 49 of the C.N.T. Act but the same are also still pending. (d) That due to allotment of insufficient land the applicant in spite of best efforts could not set up the plant due to shortage of the land. (e) That negotiation is going on with different raiyat of the concerning land for rest area. 6. That applicant will be highly prejudiced and put to irreparable loss who invested huge money if the period of setting up plant is not extended." 3. Petitioner also enclosed the details of the Misc. Case and orders passed granting permission for transfer of several such pieces of land adjoining the instant piece of land to set up the industry. 4. That applicant will be highly prejudiced and put to irreparable loss who invested huge money if the period of setting up plant is not extended." 3. Petitioner also enclosed the details of the Misc. Case and orders passed granting permission for transfer of several such pieces of land adjoining the instant piece of land to set up the industry. 4. It is pertinent to point out that the present petitioner is the successor of the original applicant M/s V.S. Dempo & Company Pvt. Ltd. by purchase of shares. The Deputy Commissioner, West Singhbhum, Chaibasa considered the application of the petitioner in Misc. Case No.72/2012-13 along with Misc. Case No.20/2013-14 and rejected the same by the impugned order dated 28th April, 2015 (Annexure-7). After taking note of the grounds urged, it observed that the original conditions of five years contained in order dated 20th March 2007 (Annexure-2) remained unquestioned. After having sat on the order for almost five years petitioner is seeking extension / modification or correction in the previous order and that too in 37 such cases. The respondent no.2 was of the opinion that being a Court, it cannot revise its own order except for correcting clerical errors. Making any changes in the previous order in any conditions or part of which would amount to revision of the previous order which is beyond the jurisdiction of the concerned court. 5. Learned counsel for the petitioner submits that the understanding of the respondent no.2 is flawed. It is not exercising the judicial power under Section 49 (3) & (4) of the CNT Act. Reliance is placed on the judgment rendered by the Patna High Court in the case of M/s Bharat Coking Coal Ltd. v. The State of Bihar & Ors. reported in 1999(3) PLJR 15 . Relying upon the same judgment paragraph-16 thereof it is urged that the order granting permission is an executive order. Counsel for the petitioner further submits that under Section 24 of the Bihar and Orissa General Clauses Act, 1917 the power to issue such an order includes a power exercisable in like manner and subject to the like sanction and conditions to add, to amend, vary or rescind any such order. The Deputy Commissioner has erroneously held that it does not have jurisdiction to entertain the application of the petitioner for extension of time to establish the industry. 6. The Deputy Commissioner has erroneously held that it does not have jurisdiction to entertain the application of the petitioner for extension of time to establish the industry. 6. Learned counsel for the petitioner submits that there are 18 cases instituted by the petitioner for fresh grant of permission for transfer of contiguous lands which are still pending before the respondent no.2. List of such cases are enclosed to the supplementary affidavit dated 17th February 2017 and also indicated in supplementary counter affidavit dated 4th April 2017. Petitioner has good reasons to satisfy the prayer for extension of time to establish the industry. The industry could not have been set up on a single piece of land if permission to transfer contiguous land have remained pending for so long. Therefore, the order needs interference under the writ jurisdiction of this Court. 7. Learned Advocate General represents the State. He submits that on the point of law, the Deputy Commissioner while exercising power under Section 49 definitely does not come within the meaning of a Court. It has also been held by the judgment rendered by the Patna High Court in M/s Bharat Coking Coal Ltd. (supra) that such exercise of power is executive in nature. The Deputy Commissioner therefore is well within his power to entertain such application on merits and take a decision whether sufficient grounds for extension of time have been made out or not on the part of the parties. 8. Learned Advocate General has also not doubted the power available under Section 24 of the Bihar and Orissa General Clauses Act, 1917 to the authority to add, to amend, vary or rescind any such notifications, orders, schemes, rules, etc. 9. Considered the submissions of the parties and the relevant material facts pleaded and noted herein above. 10. The overwhelming reason for the Deputy Commissioner, West Singhbhum, Chaibasa to refuse to entertain an application for extension of time is the understanding that it is exercising the power of a Court. The respondent no.2 perhaps dealing with such an application bore a misconception that unless the statute conferred specific power of review or revision, the same could not have been exercised. However, in view of the findings recorded in M/s Bharat Coking Coal Ltd. (supra) the power of the Deputy Commissioner under Section 49 of the CNT Act, 1908 is an executive power. However, in view of the findings recorded in M/s Bharat Coking Coal Ltd. (supra) the power of the Deputy Commissioner under Section 49 of the CNT Act, 1908 is an executive power. The order passed by the Deputy Commissioner is at best an administrative order, though under Section 49(5) the competent authority exercises a quasi judicial power. 11. Section 24 of the Bihar and Orissa General Clauses Act, 1917 reads as under :- "24. Power to make to include power to add, to amend vary or rescind, orders, rules or bye-laws.-- Where, by any Bihar and Orissa Act [or Bihar Act], a power to make or issue notifications, orders, schemes, rules, bye-laws or forms, is conferred, then that power includes a power exercisable in the like manner and subject to the like sanctions and conditions (if any) to add, to amend, vary or rescind any notifications, order, schemes, rules, bye-laws or forms so made or issued." 12. The order of the Deputy Commissioner under Section 49(3) being exercise of an executive power under the CNT Act, 1908, includes within it the power to add, to amend, vary or rescind any such orders in like manner and with conditions (if any) of course subject to the overriding conditions contained in the section itself. It would also not be out of place to note that the provisions of Section 49(5) empowers the State Governments at any time within a period of 12 years within the date of such written consent granted by the Deputy Commissioner to annul any such transfer after being satisfied with the conditions incorporated therein and giving reasonable opportunity to the parties concerned and such inquiry as may be required to be made. Whether or not the petitioner had good ground to seek extension of the period prescribed under the original order for setting up of an industry would depend upon the satisfaction of the Deputy Commissioner on merits upon objective consideration of such grounds. Therefore, the matter requires reconsideration by the respondent no. 2-Deputy Commissioner, West Singhbhum, Chaibasa. 13. The impugned order is accordingly quashed for the reasons recorded herein above. Therefore, the matter requires reconsideration by the respondent no. 2-Deputy Commissioner, West Singhbhum, Chaibasa. 13. The impugned order is accordingly quashed for the reasons recorded herein above. As both the parties have stated on affidavit that applications for permission are pending consideration before the respondent no.2 on the request of the petitioner for transfer of lands, contiguous to the instant pieces of land, it is within the discretion of the Deputy Commissioner, West Singhbhum to hear all the matters together. Writ petition is allowed in the manner and to the extent indicated herein above.