•J- c r S" \sof- IN THEHIGH COURT QP CHHA'mSGARH AXaLASPUR WRIT PETITION N0.^^ /^ /2006 PETmONER ., ^ ..<' LV •••' \^$^/ ^y ,^y 'y f Narayan Patel, S/o.Hemlal Patel @ Natthelal Patel, Aged about 55 ^years, R/o. VUIage Parivadih, ^ Rajim, Dhamtari, Distt. Dhamtari (C.G.) Represented through Shri Atul Mishra, Aged about 40 years, S/o.Late Shri K.K. Mishra, R/o. Vffla^e Kota, TahsU 8s Distt. Raipur (C.G.) duly constituted the Power oE.Attpmey. VERSUS RESPONDENTS ^."'^i; s^'% / '5~.-'—<^ X * 'fe ?? " N.T/€%rII iwh/'y^v n 7 .^- j/ —r^.. .^^-'—^T's.^i,^—-'^<F'-* ^Q^rv-fcy-^l CLE ;" v ^ ^.^^ll /" v ^- 1. State of Chhattisgarh, Through the Secretary, Mining, Mantralaya, D.K.S. Bhawan, Raipur (C.G.). / 2. Indian Bureau of Mines, Nagpur (Maharashtra) - 3. Union of India, Through the Director Mines, 101-D Wing, 1st Floor, Shastri Bhawan, New Delhi, NewDelhi- 110001 . 4. Raj Kumar Sahu, S/o. P.R. Sahu, Aged about 35 years, R/o. i* Ashwini Nagar, Raipur (C.G.). ,:5. Amit Kumar Pandey, S/o. R.P. Pandey, Aged about 32/33 years, R/o. Sundar Nagar, Raipur ^ ® Raipur (C.G.) 6. KuberYadu, Son of ..SV t...ft»:'M'C.S3.£w»...^c>-otu- Aged about 33 years, R/o 24, Sahyog Park, New Purena, Raipur, Raipur (C.G.) PE?TmON UNDER ^i'nCI^E226/227Q¥>THE COSSSrFGTSM OF WD1A^OK ISSUANCE OF A WRIT E!> HIGH COURT OF CHHAmSGARH : BILASPUR S.B. : HON'BLE SHRI MANINDRA MOHAN SHMVASTAVA.J. PETITIONER Writ Petition No.3573/2006 Pukhraj Sahu RESPONDENTS Versus State of Chhattisgarh & Ors. Appearance: Shri B. P. Sharrua, counsel for the petitioner. Shri Sushil Dubey, Govt. Advocate for the State/respondent No.r. Smt. Fouzia Mirza, Asst. Solicitor General of the Union of India/respondent No.2. Shri Rahul Tamaskar, counsel for respqndent No.3. Shri Yogesh Pandey, counsel for responSents No. 4, 5 SB 6. And Writ Petition No.3613/2006 PETITIONER Narayan Patel RESPONDENTS Versus State of Chhattisgarh & Ors. Appearance: .' Shri Rahid Tamaskar, counsel for the petitioner. Shri Sushil Dubey, Govt. Advocate for the State/respondent No.l. ; , Smt. Fouzia Mu-za, Asst. Solicitor General.for Unio'n of India. Shri Yogesh Pandey, counsel for respondents No. 4, 5 8s 6. -2- ORAL-ORDER (Passedon29.3.2011) 1. These two writ petitions are being disposed of by fhis common order because in both the petitions, the petitioners have assailed the legality and validity of recommendations in respect of private respondents No. 4, 5 8s 6 vide impugned order dated 18th February, 2003 (Annexure P-1). 2. The facts necessary for decision of the two writ petitionp. as adumbrated, are as under: Petitioner- Pukhraj Sahu in W.P. No.3573/06 and petittioner- Narayan Patel in W.P. No.3613/06 (respondentNo.3 in W.P. No.3573/06) as also respondents- Rajkumar Sahu, Amit Kumar Pandey & Kuber Yadu applied on various dates for grant of mining lease for mining limestone in the mining area situated in village-Matia of District-Raipur. The dates en which and the area in respect of which applications were filed by the two writ petitioners and three respondfents hereinabove, are as below: Name of the Applicants Date of Application Details of khasra No. applied for Detaii^ of area applied for Pukhraj S^hu 25.6.2002 523, 528/1 to 6, 8, 9 8s 11 and 533/2, 452/2 453, 455/2, 530, 458/1, 456/2, 449/2, 460/1,2,3, 459/3,4, 529-, 534 10.058 hectares Narayan Patel 19.9.1997 528/1 to 6 and 8,9, 11,533/2,534 • 18.30 acres Rajkumar Sahu 9.2.2001 534 # 7.20 acres - 3 ~ 3. A perusal of the above details would show that fhe parties had applied for area situated in same as well as in different khasra numbers on various dates. An order was passed on 18.2.2003 (Annexure P-1 in W.P. No.3573/06), wherein the Govt. recommended for grant of mining lease to Narayan Patel, Rajkumar Sahu, Amit Kumar Pandey and Kuber Yadu to the extent and in respect of the land as below: ^ft ^TRTq1JT 'IT^?T ^.TT. 528, 533 •^543 ^ ^ ^T?T ^.^. 533/2 ^ ^^TT 1.60 •9ft 'ilul^l'! W^ ^.•-f. 534 ^ ^ ^T^T 1.10 ^f^ ^5T ^a.^. 528, 534 ^r ^ c^r 523/1 cpr Vf^! 2.90 1qFc|^ T?cT ^T.^r. 534 ^T ^TSTT 1.10 T?c|^ ^t ari^ ^TTR qf^ ^cT Vf^ 4.00 ^c^ ^ft^^, ~&.^. 543 ^ 534 ^ ^ ^cT?T ^.< 534 ^T ^f^TT 2.20 4. Petitioner-Pukhraj Sahu in W.P. No.3573/06 has filed this petition assailing the con-ectness and validity of the State Govt. / - * order dated 18.2.2003 (Annexi-u-e P-1) by which the Govt. has Amit Kumar Pandey 14.1.2002 534,528/1 5.014 hectare Kuber Yadu 29.8.2002 534,543 9.75 acres -4- s» decided to grant lease in favour of respondents No. 3 to 6 therein on following grounds : (i) that the impugned order dated 18.2.2003 has been issued in violation of the raandatory provision contained in Rule 26 of the Mineral Concession Rules, 1960 (hereinafter referred to as "the Rules of 196V} because the area in respect of which the petitioner applied for, but, have been granted to respondents 3 to 6, amounts to refusal of petitioner s application which could not have been done without giving the petitioner an opportunity of hearing and by recording reasons inwriting. (ii) grant made in favour of respondents 3 to 6 individually is less than 4 hectares, which is less than the statutory minimum prescribed area for grant of mining lease as provided under Rule 22 D (c) ofthe Rules of 1960. (iii) that the petitioners had applied for a total area of 10.085 hectares in a compact and contiguous area and therefore the petitioner's application ought to have been considered and granted to him. The area for which the State Govt. has decided to grant lease in favour of respondents 3 to 6 are not comp^ct and contiguous area and such scattered grant is not contemplated under the scheme^6f the Act and Rules . ,a> -5- ^S-^S-^SsSaiv • (iv) that the petitioner had raised number of grounds to assail the legality and validity of the order dated 18.2.2003 before the Revisional Authority, but the Revisional Authority did npt consider each and every ground raised by the petitioher and the order passed by fhe Revisional Authority is a non-speaking order . 5. On the ofher hand, learned counsel for fhe respondent-State submitted that the petitioner was granted due and proper opportunity of hearing and a notice was issued to him on 7.7.2003, pursuant to which, the petitioner filed his reply. Before taking decision on petitioner's appUeation for grant of mining lease, the same was duly considered andin fact,the petitioner has also been granted mining lease in respect of the largest chunk of land admeasuring 4.315 hectares. Further submission oflearned counsel for fhe State is that various grounds and objections, which are now being raised by the petitioner before this Court, were not raised by him much less that the land which has b.een allotted to him has become useless and cream area has been allotted to, respondents 3 to 6. It is then submitted that the provision which required that no mining lease would be granted in respect of area less than 4 hectares was introduced by way of amendment, which came into force'and effect on 10.4.2003, whereas, fhe impugned order dated 18.2.2003 was. passed much !*• before that, therefore, there is no occasion to contend fhat t provision contained in Rule 22 D (c) of the Rules of 1960 were ^^'^ ^y... w.- -6- violated. As far as the petitioner's claim of preferential treatment on the base of compact area is concemed, it is submitted that there is no specific bar nor any mandate to provide any preferential treatment to one who has appUed for a compact area and the Aufhority competent to grant lease may grant lease after taking into consideration various relevant factors and, therefore, only on this ground the action of thie respondent could not be subjected to challenge. Learned counsel for the responctent- State lastly contended that the Revisional Authority has ^uly considered the submissions wh-ich were made by leamed counsel for the petitioner in his revision against the grant dated 18.2.2003 and on well founded reasons, the revision has been found to be without any merit and therefore dismissed. 6. Leamed counsel for respondent No. 3, who is petitioner in W.P. No.3613/06 submits that respondent No.3 himself has challenged the action of respondent in passing impugned order dated 18.2.2003 by a separate petition and it is the case of respondent No.3 that he being the first in point of tirp" who applied fpr grant of lease, he was entitled to preferential treafa-nent ,/-/' and was entitled to grant of lease in respect of entire area applied for by him. .1 7. Leamed counsel for respondents No. 4 to 6 vehemently opposed the grounds raised by the petitioner by submifting that what -'•' ~ - i*~ impugned ord'er seeks to do is to only make a preliminary -7- a^ recommendation and nothing more. He submits that the statutory requirement of hearing and recording reasons would arise only when the State Govt. actually grants lease to respondents 4 to 6 and the rigour of that provision cannot be applied at any stage prior to actual grant of lease. It is then contended that the amendment by which minimum area of 4 hectares was prescribed, itself came into existence on 10.4.2003 i.e rauch after grant dated 18.2.2003, therefore, it cannot be said that there was any violafion of the statutory provision. It is further submitted that the order of the Tribunal does record reasons to arrive at the conclusion that the revision of the petitioner is merit less and therefore it cannot be said that the order is non-speaking one. 'v 8. Petitioner- Narayan Patel in W.P. No.3613/06 (respondent No.3 in W.P. No.3573/06) has also assailed correctness and validity of the grant dated 18.2.2003 raising similar grounds as have been raised in W.P. No.3573/06. In addition, it has also been submitted that he had applied for grant of lease in respect of specific^A-ea of 18.3 acres way back on 19.9.1997, much prior to application made by respondents 4 to 6 'therein. It is also submitted that his application was even prior to petitioner- Pukhraj in W.P. No.3573/06, though he has.no been granted any are ofmining under impugned order dated 18.2.2003. It is further r* submitted that in view of the provision contained in Section 11 (2) r' of the Mines and l^inerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the Act of 1957'}, petitioner Narayan Patel was entitled to preferential treatment in the matter of grant of lease. Learned counsel for fhe petitioner also argued that as the provision contained in Section 22 D (c) of the Act of 1960 contemplate that lease could be granted for an area less than 4 hectares, the petitioner was entitled to grant of lease of at least 4 hectares out of the total area applied for, by him. It is lastly contended that even assuming that it -was permissible under the law tti grant lease to those who had applied subseq-''i,ent to the petitioner, the mandatory requirenient of law as engrafted in Section 11 (5) of the Act of 1957 was not complied with, as no special reasons have been recorded to justify why petitioner s preferential claim was not accepted and'grant was made in favour of respondents 4 to 6. 9. On the other hand, learned counsel for the State has mainly raised the similar submissions which have been made in reply to W.P No.3573/06. 10. Learned counsel appearing for respondents No. 4 to 6 sub'mitted. that th€petitioner's claim for grant of preferential treatment is not tenable in law because the applications were filed by the parties subsequent to notification dated 2nd November 1990, inviting application for grant of mining lease and,therefore, all the applications submitted thereafter, shall be deemed to have been I* made on the same day, as provided under the first proviso to '•t-* /t ^ss.: '* s ' I - 9 - tia.-, •'Svsx'ss'-" Section 11 (2) of the Act of 1957. In addition, leamed counsel of respondents 4 to 6 has sought to defend the order dated 18.2.2003 on the submission which have been made by him in reply to W.P. No.3573/06. } 11. I have heard leamed counsel for the parties and perused the records. 12. The undisputed factual position obtaining on record is that petitioner-Pukhraj, petitioner/respondent- Narayan Patel, respondents- Rajkumar Sahu, Amit Pandey & Kuber Yadu all had ^ applied for grant of mining lease in respect of the area situated in various khasra numbers of village Matia, as mentioned in para-3 of this order. Notification dated 2nd November, 1990 (Annexure R- 1 in W.P. No.3613/06) shows that the applications for grant of lease were required to be filed within a period of 30 days from the date of publication of notification in the official gazette. It is not the case of any of the parties and in fact it is apparently clear-tbat . the first application came to be filed as late as in the year 1997 by Narayan I^atel. Narayan Patel, Rajkumar Sahu, Amit Pandey and Kuber Yadu as also Pukhraj Sahu had all applied for grant of '' le'ase of an area comprised in kkasraNo.534. Narayan Patel & Pukhraj Sahu had applied for in respect of- land comprised in khasra No.528/1 to 6 and 8, 9, 11. Amit Pandey had applied for » in respect of land comprised in khasra No.528/1. In addition, Pukhraj hadapplied foi; grant oflease n respeet ofland comprised - -10- in various other khasra nurabers, in respect of which, no application was made by Kuber Yadu, Narayan Patel , Rajkumar Sahu 85 Amit Pandey. 13. A perusal of the impugned order dated 18.2.2003 (Annexure P-1) shows that the Govt., after having considered the applications of respondent 3 to 6 in W.P. No.3573/06, decided to grant mining lease in respect of the land comprised in various khasra numbers, including khasra No.528, 533, 534 & 543. Petitioner - Pukhraj Sahu had applied in respect of khasra No.533/02, 534, 528/1 and 534. Therefore, the grant of a part of land comprised in these khasra numbers in favour of respondents 3 to 6 clearly amounted to rejection of petitioner-Pukhraj application for grant ofmining lease in respect ofthe area applied for. 14. Rule 26 of the Act of 1960 mandatorily providelthat the State Govt. may after giving an opportunity of being heard and for reasons to be recorded in writing and communicated to the applicant, refuse to grant or renew a mining lease over the whole or part of the area applied for. Therefore, the statutory maridate obliged tly.e respondent State Govt. to grant the petitioner an ^' opportunity of hearing before deciding to grant mining lease in •' favour of respondents 3 to 6 in respect of the area for which the petitioner had already applied for. From the factual details/which have been stated hereinabove, and the details wbich have been / I* given in the petifions, it is clearly bbn-ie-out that the area in -11- respect of which the petitioner had applied for, included part of those area in respect ofwhich applications ofrespondent No. 3 to 6 were pending and were ultimately considered &nd allowed, though to certain extent. Such grant in favour of respondent No. 3 to 6 undoubtedly tantamount to rejection of petitioners' application. Therefore, the petitioner was not only entitled to an opportunity of being heard, but at the' same tirue the State Govt. was under statutory obligation to record reasons in writing as to why the petitioner's claira for grant of lease in respect of the area applied for and granted to respondents No. 3 to 6 was rejected. 15. The submission oflearned counsel for respondents No. 4 to 6 that the provision of Rule 26 (1) of the Rules of 1960 would not be attracted as the lease has not been granted, but only a recommendation has been made, though, at the first blush, v appears to be attractive, but on a close scrutiny, is liable to be rejected. What is material is the decision taken by the Govt. Execution of lease deed would only be an ' executive act, subsequent to the decision taken by the State Govt. The >i- requirement of grantLng of opportunity of hearing and recording reasons in writing would certainly arise for compliance at that ,1 stage when the decision is taken by the Govt. in favour of respondents 3 to 6, which amounts to rejection of petitioners application in respect of part of la^d applied for by him. Therefore, I am not inclined to accept the said submission. -12- ^^ SSSSK- 16. In so far as the challenge to the grant, based on violation of provision contained in Rule 22 D (c) of the Rules of 1960 is concerned, the date on which the Govt. decided to grant and issue impugned order dated 18.2.2003, the statutoiy provision was not in existence and in force, as the same, admittedly, came into force only w.e.f. 10.4.2003. The grant was made on 18.2.2003 (Annexure P-1) by the State Govt., but it appears that before the Govt. could proceed to grant lease, the correctness and validity of the Govt. order was subjected to challenge by fiiing revision before the RevisionaJl Authority. May be for that reason, the State Govt. did not execute any lease deed in favour of respondents 3 to 6. However, at this stage, I am only required to consider the correcta'iess and validity of order dated 18.2.2003 (Annexure P-1) and not to decide question which may arise in future in the even of grant. y 17. The argument, based on preferential treatraent on the ground that the petitioner- Pukhraj Shau, having applied for a compact area, was entitted to be granted lease, is a matter -10 be considered by appropriate authority while considering petitioner's .application or application of other persons who have also applied for the same area. However, in the prespnt case, as I have held that the decision of the Govt. reflected in their order dated 18.2.2003 to grant lease in favour of respondents 3 to 6 is bad for 1-* non-corapliance of mandatory provision contained in Rule 26 (1) -13- \ ^ of the Rules of 1960, it is not necessary for this Court to dweU into that aspect any further. 18. The argument with regard to the non-speaking nature of the order passed by the Revenue Authority, ordinarily, in the event of being accepted, would have resulted in remand of the case to the Revenue Authority. However, for the reasons which I have stated hereinabove that the grant is illegal, otherwise, I am not inclined to go further in that aspect. 19. The respondent No.3 in W.P. No.3573/06, who is the writ petitioner in the other petition, has also ventilated his grievance aggrieved by grant dated 18.2.2003, submitting that he was first in point of time and therefore he was entitled to preferential treatment. The State has not come out with any specific ground as to why that preferential treatment claimed by the petitioner Narayan Patel was not considered by fhe State and what were the reasons which transpired in the mind of the State Govt. not to extend the benefit of preferential treatment to him in respect of the whole area applied for, by him. Though, the law does permit grant of lease to one who has appUed. later in point of time, the exercise of power is circurascribed by the rider, as contained in ,1 ' ': sub-Section (5) of Section 11 of the Act pf 1957, that special reasons are required to be recorded. The order dated 18.2.2003 ,' hardly fulfills this statuary requirement'. -14- 20. Moreover, there is another glaring aspect of the matter. Petitioner -Pukhraj Sahu has applied for grant of lease on 25.6.2002. Though in respect of land com.prised in khasra No.528/1 to 6 and 8,9 8s 11, khasra No.534 8s 543, he could not be treated as the first applicant, however, in respect of remaining area, he certainly was the first applicant. Neither in the impugned order dated 18.2.2003, nor in the retum filed by the State, it has anywhere been stated as to how this aspect has been dealt-with. 21. The leamed State counsel submitted that the petitioner was granted an opportunity of hearing by the notice dated 7.7.2003. The argument deserves to be rejected atthe threshold, t&cause much prior to that, the Govt. had already decidted to grant lease in respect of the some of the area applied for by the petitioner - Pukhraj, vide impugned order dated 18.2.2003. Therefore, subsequent hearing was only eyewash and would not cure the illegality which had already been committed by the Govt. in deciding to grant lease in favour of respondents 3 to 6 of W.P. No.3573/06. .. ,_ .; ^" 22. In the result, both the petitions are allowed. Impugned order •" dafed 18.2.2003 is hereby quashed. The respondent-State shaU now consider the applications of all the applicants, which include the two writ petitioners and private respondents in the two writ petitions. The ^applications shall be»considered strictly in -15- Praveen ^ accordance with law and the provision contained in the Rules' of 1960 and the Act of 1957. 1 23. As the matter has reniained pending before this Court for quite some time, it is expected that the State Govt. shall take decisipn in the matter, one way or the other, within a reasonable time and expeditiously. 24. There shall be no ordefs as to costs. \ 25. A copy of this order be placed in the record of connected petition (W.P. No.3613/06). -"d"£"5n"""'"