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2024 DIGILAW 355 (RAJ)

Shyam Siroya v. Union of India

2024-02-26

NUPUR BHATI

body2024
ORDER : (Nupur Bhati, J.) The present writ petition has been preferred under Article 226 of the Constitution of India claiming following reliefs :- "(i) the impugned order dated 06.07.2028 (Annex-12) passed by the respondent No.2 may kindly be set aside with all consequential directions. (ii) the respondent State of Rajasthan may kindly be directed to decide the revision petition (Annex-11) filed by the petitioner independently and expeditiously without being influenced by the order dated 06.07.2018 (Annex 12) (iii) costs of the writ petition may kindly be awarded to the petitioner." 2. At the outset, learned counsel for the petitioner submits that the controversy involved in the present writ petition is squarely covered by the order dated 07.10.2023 passed in SBCWP No.9763/2014 : Smt. Chandra Kala Bilochi v. The Union of India and Ors. The relevant part of the order is reproduced hereunder :- "12. As per the provisions or Rule 26 of the Rules of 1960, It is mandatory for the respondents to afford opportunity of hearing to the petitioner. However, in the present case, if the notices has not been served upon the petitioner, then, the petitioner has been deprived of such opportunity of being heard. Furthermore, if the statement of the respondents that the petitioner was duly served upon notice dated 25.03.20211, is believed, then, the application filed by the petitioner seeking extension of time dated 07.04.2011 (Annexure-4) was within a period of 30 days as prescribed under Rule 26(3) of the Rules of 1960. The impugned order dated 07.07.2011, further reflects that the said application filed by the petitioner has not been duly considered while revoking the sanction of mining lease. Also, the Revisional Authority in its order dated 31.01.2014 (Annexure-11), has failed to consider the aspect; firstly, that the petitioner was willing to make compliance of the notice dated 01.06.2010 and secondly, that the petitioner had filed an application for extension of time well within a period of 30 days from the date of notice dated 25.03.2011 and further, the medical record and the illness suffered by the petitioner, has also not duly been considered by the respondents. 13. 13. As an upshot of the discussion made hereinabove, this Court is of the firm opinion that the present writ petition deserves to be allowed, particularly when the petitioner had duly deposited the advance dead rent for a period of six months on 09.06.2010 and the petitioner had also purchased the non-judicial stamp, worth Rs.1,200/- and had duly submitted the application dated 07.04.2011 (Annexure-4) for extension of time for compliance of the notice dated 01.06.2010 and on account of serious illness, the petitioner could not make compliance of the notice dated 01.06.2010. 14. The impugned orders dated 31.01.2014 (Annexure-11), passed by the Mining Department and the order dated 19.05.2010 (Annexure-1) passed by the Directorate of Mines & Geology, Udaipur, are hereby, quashed and set aside qua the petitioner. 15. The respondents would be at liberty to impose penalty, not exceeding twice the amount of advance dead rent upon the petitioner w.e.f. order dated 19.05.2010 (Annexure-1) and the terms laid down therein. The said amount of advance dead rent, shall be determined within a period of one month from the date of receipt of certified copy of this order and the petitioner shall deposit the said amount within one month thereafter. 16. The writ petition is allowed in the above terms. Stay application as well as all other pending applications are disposed of accordingly. 17. No order as to costs." 3. Learned counsel for the petitioner submits that firstly, the respondents while passing the impugned order, failed to afford the petitioner an opportunity of hearing which is mandatory as per Rule 18 (21) (a) of the Rajasthan Minor Mineral Concession Rules, 1986 as well as Rule 27 (5) of the Mineral Concession Rules, 1960. He further submits that as the respondents passed an order dated 26.08.2014 (Annexure-6) while mentioning in it that the petitioner was served upon a notice on 05.05.2014 and was directed to submit reply within a period of 30 days from the date of issuance of the said notice. He submits that however such notice was never served upon the petitioner. He further submits that it is an admitted fact that respondents served notice dated 29.06.2010 (Annexure-10) upon the petitioner, which was duly received and a detailed reply was also submitted to it. 4. He submits that however such notice was never served upon the petitioner. He further submits that it is an admitted fact that respondents served notice dated 29.06.2010 (Annexure-10) upon the petitioner, which was duly received and a detailed reply was also submitted to it. 4. Learned counsel for the petitioner submits that after the notice dated 29.06.2010 no inspection was conducted and after a period of four years, the order dated 26.08.2014 (Annexure-6) had been issued by which the petitioner's mining lease came to be cancelled while alleging the violation of the conditions. Learned counsel for the petitioner further submits that the mineral in question was a major mineral, however, it was converted into minor mineral in the year 2015 and thus, the revisional authority had no jurisdiction to decide the said revision of the petitioner and thus, the impugned order dated 06.07.2018 (Annexure-12) suffers from grave illegality. 5. Learned counsel for the petitioner also submits that the petitioner in reply had categorically stated that the petitioner had suffered major heart surgery, on account of which, the petitioner was unable to operate the mines, however, medical condition suffered by the petitioner has not been considered by the respondents and proceeded to pass the impugned order. 6. Learned counsel for the petitioner also places reliance upon the judgment dated 23.02.2023 passed in DBSAW No.882/2007 : Kamal Kant Jain v. The State of Rajasthan and Ors and the relevant part of the judgment is reproduced hereunder: - "From the above determination made by Single Judge as upheld/approved by the Division Bench, it is apparent that while taking action under the provisions of Rule 18 (21) in case of any breach on the part of lessee of any conditions contained in the lease, before exercising the option of extreme penalty of determination of lease, the authority has to explore the imposition of alternative penalty also and has to come to a conclusion that the breach was of such a nature that the determination of lease was the only penalty which could be imposed. In the present case, as noticed hereinbefore, imposition of alternative penalty has not been explored by the respondents and straightway determination of lease has taken place, which action, in the circumstances of the case, cannot be approved. In the present case, as noticed hereinbefore, imposition of alternative penalty has not been explored by the respondents and straightway determination of lease has taken place, which action, in the circumstances of the case, cannot be approved. The submission made by the respondents that provisions of Rule 18 (21) of the Rules, 1986 are not applicable in case of renewal of the lease, apparently has no substance in view of Rule 17 of the Rules, 1986, which provides for renewal of mining lease and inter alia provides as under: "17. Renewal of Mining Lease :- (1) ........... (2) ........... (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 lease it shall be deemed to have been extended by a further period till the competent authority passes order thereon. The dead rent after expirty of the elase period shall be as per the revised dead rent referred to in sub rule (3) of the rule 18." A perusal of the above provision reveals that 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 passes order thereon and, therefore, as on 7/1/2003 when the Addl. Director passed the order, the mining lease was in currency on account of the deeming provision and, therefore, the submission made in this regard cannot be countenanced. Further, a bare look at the order passed on 7/1/2003 itself reveals that the authority has cancelled the mining lease and rejected the renewal application, which necessarily means that the mining lease was in currency on the said date and as such, the submission made in this regard has no substance. In view of the above discussion, besides the fact that the aspect of withdrawal of the suit on the same issue apparently was not brought to the notice of the learned Single Judge and on account of subsequent developments, whereby the demand raised against the appellant has been quashed and on re-determination it has been bound that nothing was due against the appellant and the fact that provisions of Rule 18(21) of the Rules, 1986 were not followed by the respondents while passing the order dated 7/1/2003/rejecting the revision petition on 20/9/2006, the orders impugned cannot be sustained. Consequently, the special appeal is allowed. The order dated 10/8/2007 passed by the learned Single Judge is set aside. The order dated 7/1/2003 passed by the Addl. Director (Mines), Udaipur Zone, Udaipur (Annex.13 to the writ petition) and order dated 20/9/2006 passed by the Deputy Secretary, Mining Department, Rajasthan (Annex.20 to the writ petition) are quashed and set aside. The matter is remanded back to the Addl. Director (Mines) to pass fresh order on the renewal application of the appellant taking into consideration the subsequent events as well as the provisions of Rule 18 (21) of the Rules, 1986 as interpreted hereinbefore. Needful may be done by the said authority within a period of three months from the date copy of this order is placed by the appellant with the said authority. No order as to costs." 7. Learned counsel for the respondents submits that after considering all the aspects of the matter, the order has been rightly passed against the petitioner. 8. This Court finds that Rule 27 (5) of the Minor Mineral Concession Rules, 1990, specifically provides that in case of default in payment of royalty, in the payment of dead rent or breach of any condition, the State Government shall give notice to the lessee, however, in the present case, it is apparent that notice has not been served upon the petitioner as from a bare look at the reply, though the respondents have said in the pleadings that notice dated 05.05.2014 was served upon the petitioner, no such proof of notice has been placed on record. 9. It is also seen that Rule 27 (5) of the Mineral Concession Rules, 1960 categorically lays down that :- "27. 9. It is also seen that Rule 27 (5) of the Mineral Concession Rules, 1960 categorically lays down that :- "27. Conditions:- xxx xxxx xxxx (5) If the lessee makes any default in the payment of royalty as required under section 9 or payment of dead rent as required under section 9A or commits a breach of any of the conditions specified in sub-rules (1), (2) and (3), except the condition referred to in clause (f) of sub-rule (1), the State Government shall give notice to the lessee requiring him to pay the royalty or dead rent or remedy the breach, as the case may be, within sixty days from the date of the receipt of the notice and if the royalty or dead rent is not paid or the breach is not remedied within the said period, the State Government may, without prejudice to any other proceedings that may be taken against him, determine the lease and forfeit the whole or part of the security deposit." 10. Rule 18 (21) (a) of the Rajasthan Minor Mineral Concession Rules, 1986 reads as under: "Conditions:- The following conditions shall be included in every mining lease and if they are not so included shall be deemed to have been included therein:- xxx (21) (a) In case of any breach on the part of the lessee of any covenant or condition contained in the lease, the competent authority may determine the lease and take possession of the said premises and forfeit the security money or in the alternative may impose payment of a penalty not exceeding twice the amount of annual dead rent of the lease. Such action shall not be taken unless the lessee has failed to remedy the breach after serving of 15 days notice;" 11. Thus, it is apparent that the respondents without adhering to the mandatory provisions of the Rules, have proceeded to pass the impugned order dated 06.07.2018 (Annexure-12) against the petitioner. 12. Such action shall not be taken unless the lessee has failed to remedy the breach after serving of 15 days notice;" 11. Thus, it is apparent that the respondents without adhering to the mandatory provisions of the Rules, have proceeded to pass the impugned order dated 06.07.2018 (Annexure-12) against the petitioner. 12. It is also seen that revisional authority has erred in passing the order dated 06.07.2018 (Annexure-12), as upon conversion of the Major Mineral 'Quartz' into 'Minor Mineral' vide notification dated 10.02.2015, the revision application filed under the Mineral Concession Rules, 1960 could only be decided by it, however, after the Notification dated 10.02.2015 came into existence the revisional authority i.e. Joint Secretary, Ministry of Mines did not have the jurisdiction to adjudicate the revision preferred by the petitioner. 13. The respondents were also under obligation to consider the fact that the petitioner had suffered a major heart surgery on account of which, the petitioner could not operate the mines, however, the same has not been considered objectively. 14. As an upshot of the discussion made hereinabove, the impugned order dated 06.07.2018 (Annexure-12), is quashed and set aside. The respondents would be at liberty to impose penalty, not exceeding twice the amount of advance dead rent upon the petitioner with effect from the year 2019 and the terms laid down therein. The said amount of advance dead rent shall be determined within a period of three months from the date of receipt of certified copy of this order and the petitioner shall deposit the said amount within one month thereafter. 15. The writ petition is allowed in the above terms. Stay application as well as all other pending applications, if any, also stand disposed of.