*THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO +WRIT PETITION NO.27859 OF 2011 % 17th October 2011 Between: M/s A.S. Shipping Agencies (P) Limited Rep. by its authorized representative K. Chenchu Ramaiah, S/o Venkateswarulu R/o D. No.8-488, 1st Line, Nirmal Nagar, Ongole, Prakasam District ..... Petitioner. AND 1. Director of Mines & Geology, BRKR Bhavan Hyderabad. 2. Deputy Director of mines & Geology, Guntur Guntur District. 3. Viking Bulk Cargo Terminals (P) Ltd 5, G.N. Road, Moolakkadai, Chennai ....Respondents For the Petitioner : Sri Sita Ram Chaparla For the Respondents : GP for Mines & Geology for R-1 and R-2 < Gist: > Head Note: ? CITATIONS: 1) AIR 1987 SC 2186 (1) 2) AIR 1999 SC 22 3) AIR 2000(1) 1165 4) AIR 1970 SC 1273 5) AIR 2005 SC 1782 6) (1969) 3 SCC 769 7) AIR 1987 SC 2186 8) AIR 1999 SC 22 9) 1875 (1) Ch D 426 10) AIR 1936 PC 253 11) AIR 1954 SC 322 12) AIR 1975 SC 915 THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 27859 OF 2011 O R D E R: This Writ Petition has been directed against an order passed on 16.09.2011 by the 2nd respondent Deputy Director of Mines and Geology, Guntur. 2. The impugned order dated 16.09.2011 is a show cause notice issued by the 2nd respondent calling upon the petitioner to show cause why action should not be taken for cancellation of the Mineral Dealer’s Licence as it is felt that the said dealer’s licence has been obtained by the petitioner without getting the consent from the pattadar. When this issue has been pointed out to the learned counsel for the writ petitioner. Sri Sitharam Chaparla, the learned counsel would submit that once the Deputy Director grants the dealer’s licence, he cannot deal with the same any further and if any party is aggrieved, he can only carry the matter by way of an appeal to the Director of Mines and Geology, the 1st respondent herein. Therefore, contends the learned counsel, that the 2nd respondent lacks jurisdiction and hence, the impugned show cause notice should be set at naught. 3. An order in the nature of a show cause notice is, undoubtedly, liable to be interdicted by this Court, in exercise of jurisdiction under Article 226 of the Constitution of India, where the authority, who issues the notice lacks jurisdiction. In the instant case, it is not disputed that the 2nd respondent is the competent authority to grant the licence. In fact, it is the 2nd respondent, who has granted the licence earlier in favour of the writ petitioner on 30.08.2011. When a certain factual matter has been brought to the notice of the 2nd respondent that the licence in question has been obtained without true and correct facts being brought to his notice, the 2nd respondent has only proposed a corrective measure by issuing the show cause notice. It is a fundamental principle of law that if an order is passed by a competent authority without noticing all the relevant facts, such a grant amounts to ……… (while the order was being dictated thus far, on 12.10.2011, with leave, Sri Sitaram Chaparla interrupted the proceedings, on the premise that an erroneous fact is being recorded by me. Instead of trying to focus attention on the alleged error of fact recorded, the learned counsel embarked upon an otherwise unnecessary diatribe for quite sometime. In the process, I had to caution the learned counsel not to over step the limits of dignity of presentation of arguments. Learned counsel sought for time till the afternoon session for supplementing the arguments again. Therefore, I proceed now to record further submissions made by the learned counsel and deal with them.) ……………………………..….. an improper exercise of power. 4. The petitioner was initially granted the license under Rule 5 of the Andhra Pradesh Mineral Dealers Rules, 2000, framed by the Governor in exercise of power available under Section 23(c) of the Mines and Minerals (Development and Regulation) Act, 1957 (henceforth called as Rules) to regulate the possession, storage, trading and transport of minerals and mineral products and to check the evasion of royalty or seinorage fee and other related matters. In terms of Sub-rule 2 of Rule 5 of the Rules, the Deputy Director of Mines and Geology is the competent authority to grant a dealer’s registration in Form-D for a period of five years. Sub-rule 3 of Rule 5 requires every renewal application to be made to the Deputy Director 90 days prior to the date of expiry of the existing registration. The petitioner was granted registration in Form-D for a period of 05 days commencing on 05.07.2006 up to 04.07.2011. From a perusal of the copy of the Form-D which is placed at page 16 of the paper book, it is evident that the petitioner paid the necessary fee of Rs.1,000/- at the Sub-Treasury Office, Guntur through Challan No.10615 dated 23.06.2006. This registration has expired by 04.07.2011. There is no material available on record to demonstrate that the application seeking renewal of the Form D was filed 90 days prior to it’s expiry on 4.7.2011. However, once again the Deputy Director of Mines and Geology, Guntur, granted the registration in Form-D for a period of 05 years with effect from 30.08.2011 up to 29.08.2016. (This was, however, claimed by the petitioner as a renewal of the earlier grant.) From Column No.8 of this Form-D, which is available at page 15 of the paper book, it appears the petitioner has paid a fee of Rs.1,000/- at the Sub-Treasury Office, Guntur, through Challan No.38842 dated 25.08.2011. Column No.5 of the Form-D will have some bearing upon the controversy and it reads as under: “05. Specific Place or places of business : Survey No.692/21, 22A, 23A & 693, Surareddypalem Railway Stock-yard, Tangutur Mdl, Prakasam Dist.” 5. Between these two sets of Form D, the one granted by the Deputy Director on 30.08.2011 specified a certain place, with reference to the exact survey numbers, in which the land is located. 6. It appears the third respondent herein filed a representation before the Deputy Director on September 12, 2011, requesting him not to issue Mineral Dealer License over the property said to be belonging to the third respondent. In the opening passage of this representation, the third respondent has claimed absolute ownership over the land falling in Survey No.692/21, 693, 692/22A and 692/23A of an extent of Ac.7.31. It was also set out therein that this land was earlier leased out to the petitioner and that the said lease agreement has expired on 31.03.2011 itself. Therefore, the third respondent requested the Deputy Director not to grant Mineral Dealer License over the land belonging to the third respondent in as much as the third respondent appears to have obtained a letter of intent from the Ministry of Commerce and Industry, Government of India, New Delhi to set up an Internal Container Depot (ICD) at that very site. In this factual backdrop, the second respondent has issued the impugned show cause notice calling for the explanation of the petitioner as to why action should not be taken for cancellation of the dealer’s license. 7. As can be gathered from the information liable to be furnished as against Column No.5 of Form D, the particular site or location where the registration is sought for, is obviously required to be furnished by every applicant. It will not be unreasonable to infer that such an information is needed to be furnished by every applicant in as much as without getting registration certificate in Form-D, no mineral can be stored or traded or transported from any such site. Further, if the location of the storage facility is not to be known to the second respondent, he will never be able to accomplish the main purpose of the rule namely check of evasion of royalty or seinorage fee or stopping of illegal mining, quarrying and transportation of mineral. Therefore, every applicant has to necessarily mention the location where the storage facility is sought to be established. 8. The contention of the learned counsel for the petitioner is that, the writ petitioner has not furnished any document with regard to his right or title or interest with regard to the land where the mineral granite is sought to be stored by the petitioner. According to the learned counsel for the petitioner, no such information was furnished even on the previous occasion when Form-D was granted to the petitioner on 05.07.2006. Therefore, according to the learned counsel, the second respondent cannot assume that there was some mistake or misrepresentation on the part of the petitioner which resulted in securing Form-D on 30.08.2011 improperly and hence, the impugned show cause notice has no valid basis at all. Learned counsel would further contend that the petitioner has not suppressed any material nor did he furnish any incorrect material for the second respondent to seek to review his own order dated 30.08.2011. It is specifically urged by the learned counsel that not getting the consent letter from the pattedar of the land does not amount to suppression of facts. Learned counsel for the petitioner would further contend that power of review cannot be assumed by any quasi judicial authority and power to review has got to be conferred specifically by the statute and in fact the rules have not provided for any such review and hence the impugned show cause notice is without jurisdiction. The learned counsel would further contend that under Rule 11 of the Rules, an appeal is provided to every aggrieved party against the decision of the Deputy Director. Therefore, if the third respondent is aggrieved by the orders of the Deputy Director dated 30.08.2011, can only prefer an appeal in terms of Rule 11 to the Director but the third respondent cannot approach the Deputy Director once again. The learned counsel would further contend that if a statute has provided an act to be performed in a particular manner, the same shall be followed and no other method should be devised for achieving the said objective. It is stated by the learned counsel for the petitioner that only by approaching the appellate authority, the third respondent can secure relief but not by approaching the Deputy Director. 9. Learned counsel has also placed reliance upon two judgments rendered by the Supreme Court reported in Dr. (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Maha Vidyalaya, Sitapur (U.P) and others[1] and Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others[2]. 10. What is now sought to be done by the 2nd respondent – Deputy Director was to cancel the registration accorded to the petitioner herein by him on 30.8.2011. As was already noticed supra, Form D – Registration Certificate is required to be location specific. Lest, it will not serve either the purpose of the rules or the purpose of granting the dealer’s license. When we compare the license granted on 30.8.2011 with the one which was granted on 5.7.2006, it becomes crystal clear that the one granted on 30.8.2011 is with reference to the land situated in Sy. Nos. 692/21, 22A, 23A and 693, Surrareddypalem Railway Stock-yard, Tangutoor Mandal, Prakasam District. On the previous occasion, it was merely mentioned as Surrareddypalem Railway Stock-yard. The question that has got to be answered here is whether a license can be granted in favour of the petitioner over the land, without the petitioner having any manner of right to store or stock and trade with the mineral granite, there. If the land in question is owned and possessed by a third party, without first having any subsisting right, title or interest over such a land, no applicant can seek for nor can any competent authority grant a license for storing any mineral thereon. Clearly, the 2nd respondent has got no authority to grant a license to store mineral over a land belonging to a third party or a public authority. If vacant land is simply available near about Surareddypalem Railway Yard, such a fact does not authorize the 2nd respondent to grant a mineral dealer’s license in favour of the petitioner to enable him stock all his mineral on such a land belonging to the railways or any other third party. Therefore, the petitioner is required to satisfy the competent authority to grant the license of his right to store the mineral over such a land, by securing either title to the said land or grant in the form of lease or license which is subsisting. In the absence of any such circumstance, the 2nd respondent could not have granted the mineral dealer’s license at the first place. He may not embark upon various intricate questions relating to right or title to the land in question, but, he must be satisfied about the existence of a semblance of such a right. It forms an essential and integral part of the ultimate grant. Once the 2nd respondent has noticed the mistake committed by him in this regard, the failure to ascertain the basic facts about the applied for land he has put the petitioner on notice proposing cancellation of the license, as a part of adherence to principles of natural justice. 11. The word `mistake’, to my limited knowledge, does not appear to have been defined by the Indian Legislature though the said expression has been used at several places in various legislations such as Indian Contracts Act (See Sections 18, 20, 22 and 72), Indian Evidence Act (See Section 92), Indian Specific Relief Act (See Sections 26, 28, 31 and 36) etc. A mistake may have originated due to the imperfection of senses or, even sometimes due to the deficiency of the intellect. It may have occasioned by sheer chance or even by negligence or due to stupidity or even superstition, but it must not be due to disarrangement or pre concert. (Sonford v. Beal – (1895) 56 LJ QB 74). It, therefore, follows that `mistake’ must be one as to a matter of fact essential to the grant. A `mistake’ which is purely non- substantive to the core issue or does not form a part of an essential ingredient for the grant, can only be regarded as a procedural mistake and not a substantive mistake, which may not have impacted the final decision. I consider it appropriate, in this context, to notice the following statement of Dr.S.C.Banerjee in his Tagore Law Lectures:- “Mistake is internal and may be more correctly described as an erroneous mental condition, conception or conviction, induced by ignorance, misapprehension, or misunderstanding of the truth, but without negligence, and resulting in some act of omission, done or suffered, erroneously by one or both the parties to a transaction, but without its erroneous character being intended or known at the time. Wherever by reason of an erroneous impression or a wrong conclusion, a person is induced either to do or to omit to do what he would not have otherwise done or omitted, there is a mistake. If the mistake is material, i.e., of the essence of the transaction or where without it the transaction would not probably have taken place and, if it is unconscionable for the party deriving benefit from the mistake to retain his advantage, a Court of Equity will feel disposed to interfere…..” However, the most salient aspect to be kept in mind is that that the Court will not assist, normally, a man who contributed to the mistake although attributable for want of due diligence, which may fairly be expected from any reasonable person. 12. A `mistake of fact’ when deliberately indulged in with a view to induce the other person acting thereon to secure a more favourable or suitable position which would best suit the condition or requirements of the former can also take the form of fraudulent misrepresentation. It is worth recalling the words of Justice K.T.Thomas in the Judgment rendered in United India Insurance Company Ltd v. Rajendra Singh[3]:- “Fraud and justice never dwell together. (Frans et jusnunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything (Lazarus Estate Ltd. Vs. Beasley 1956(1) QB 702.)” 13. What the impugned show-cause notice proposed now is a cancellation. The expression `revocation’ has the same effect and meaning of cancellation. The expression `revocation’ is a more appropriate expression wherever an authority wants to cancel the thing which has been done earlier by the very same authority. Therefore, cases of cancellation or revocation stand entirely on a different footing from that of a review. The concept of review is altogether a different one. Unless the statute or the rule provides and confers power of review, the same cannot be assumed. It has got to be conferred specifically or must be capable of so inferred in the setting of the legal regime. See Constitution Bench Judgment of the Supreme Court in Patel Narshi Thakershi and others Vs. Pradyumansinghji Arjunsinghji[4]. It would be apt to notice, in the present context, the principle enunciated by the Supreme Court in Kapra Mazdoor Ekta Union v. Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd and others[5]:- “18. It was, therefore, submitted before us relying upon Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) clearly highlighted this distinction when it observed :- "Furthermore, different considerations arise on review. The expression ’review’ is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a mis- apprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debita justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal". 19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked………” Therefore, to my mind, what is proposed to be done in the instant case, is only a revocation or cancellation of a grant made earlier by the 2nd respondent, as a part of procedural review exercise and it is not a case of a review of a lis on merits. 14. Availability of an alternative remedy is not normally considered as a bar for entertaining the jurisdiction available under Article 226 of the Constitution of India. It is only a self imposed limitation or restraint by the courts. Particularly when necessary facts have got to be gathered, the courts more or less swing in favour of allowing the parties to go through the alternative mechanism so that the judicial review of the decision-making process of the quasi judicial authority can be far more easily exercised by the writ court later on. In exceptional circumstances, even in a proceeding initiated under Article 226 of the Constitution of India, oral evidence can be collected by the Court, Gunwant Kaur Vs. Municipal Committee, Bhatinda[6]. “14. …. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.” But, however, such occasions should be far and few in between and shall not be made a regular or routine course. 15. Where an authority, either administrative or quasi judicial inherently lacks jurisdiction to undertake a particular exercise, then, even at an initial step such as issuance of show-cause notice, the whole process can be interdicted by a court. That was because going through the entire process would be a mere wastage of time and energy in such cases. When the 2nd respondent is the competent authority under the Rules, 2000, to grant the mineral dealer’s license, it follows that he has also the power to revoke it or cancel it, when considered that the original grant is vitiated due to a mistake of fact or for such other valid reasons. Such is not the present case where the 2nd respondent can be said to be lacking inherently the power to revoke the grant, for me to interdict all further proceedings in the matter. 16. The two judgments relied upon by the learned counsel for the writ petitioner are of no serious help to him. I n Dr.Smt.Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya[7], the Supreme Court in paragraphs (11) and (12) of the judgment made it clear that a quasi judicial authority cannot review its own order unless the power of review is expressly conferred on it by the statute under which it derives jurisdiction and further, that an alternative remedy is not an absolute bar to the maintainability of a writ petition. It is stated in clear terms that where an authority has acted wholly without jurisdiction; the High Court could not refuse to exercise its jurisdiction under Article 226 of the Constitution of India on the ground of existence of an alternative remedy. Similarly, in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai[8], in paragraph (20), it has been clearly stated