x^^ril^ HIGH COURT OF CHHATTISGARH, BILASPUR S.B : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. Writ Petitipn <c)-1693^of2007 PETITIONER Jawaharlal Chandrakar RESPONDENTS Versus State of Chhattisgarh 85 Ors. ORDER POST ON ^'A'JUNE, 2011 Sd/- Manindra Mohan Shrivastava Judge HIGH COURT OF CHHATTISGARH ; BILASPUR S.B. : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA, J. Writ Petition ro-1693 of 2007 PBTITIONER Jawaharlal Chandrakar RESPONDENTS Versus State of Chhattisgarh 85 Ors. Petitipn y/Article 226 pf the ConstitytiQn pf India Appearance: Shri Prashant Jayaswal, Sr. Advocate with Shri Saif IChan, counsel for the petitioner. Shri V.V.S. Murthy, Dy. Advocate General for the State/respondents No. 1 to 5. None for respondent No.6. ORDER (Passed on /7- .06.2011) 1. By this petition under Section 226 of the Constitution of India, the petitioner has prayed for following reliefs : "7.1 The petitioner above named most respectfuUy prays to this Hont)le Court to call for the entire records of the case. 7.2 The petitioner above named most respectfully prays to the Hon'ble Court to issue writ of certiorari for quashing the orders contained in documents Annexure P/6 and Annexure P/8. 7.3. The petitioner most humbly and respectfully prays to the Hon'ble Court to issue writ of mandamus :l<t ^ "%.^y 'vls'-^afft'ls~ -2- and appropriate directions to the respondents to allow the petitioner to carry on with mining lease. 7.4. Any other relief, which may suitable in the facts and circumstances of the case may also be granted to the petitioner." 2. The factual backdrop of events giving rise to instant petition is that the petitioner had applied for grant of quarry lease of lime stone in an area situated in village - Ghodari, District- Mahasamund. On his application, the petitioner was granted quarry lease for a period of 10 years from 1.1.1998 to 31.12.2008 vide lease deed dated 24.12.1997 (Annexure P-3). 3. When it came to the notice of the State Govt. and the Collector that number of quarry lease has been granted on the banks of river- Mahanadi, in the prohibited area, thereby violating provision contained in Rule 5 (2) (d) of the Minor Mineral Rules, 1996 (hereihafter referred to as "the Rules of 1996'), after necessary enquiry, the Collector having found that grant of 18 quarry leases in villages- Ghodari, Barbaspur 8s Mudena of Mahasamund District was in violation of the statutory provision contained in Rule 5 (2) (d) of the Rules of 1996, proceeded to cancel all such leases. As the lease granted in favour of the petitioner was also in the prohibited area, the lease of fhe petitioner granted in his favour was also cancelled. Some of the lease holders preferred an appeal before the Director Mining. In the meantime, some of fhose whose quarry lease were cancelled, approached the State Govt., bringing to its notice that the quariy lease were operating in the area for more than 40 years. Moreover, number of cutting and policing industries had also come up in the area due to availability of the mines and as a result of cancellation of lease, problem of employment and bread earning is being faced by the labours ofthe area. The State Govt. constituted a Committee and after receipt of fhe report, taking into consideration various aspects, particularly the humanitarian aspect, decided to relax the rule in respect of those cases where lease was cancelled, in exercise of suo motu power of revision as provided under Rule 58 of the Rules of 1996 and allowed mining by relaxing rules in exercise of powers of relaxation conferred under Rule 66 of the Rules of 1996, treating all such class of cases as special class in the manner and to the extent stated in its order dated 14th May, 2011 (Annexure P-4). 4. In terms ofthe order ofthe State Govt., the petitioner was granted lease, though without any right of renewal and only up to 31st December, 2005 vide supplementary lease (Annexure P-5) executed in favour of the petitioner. After expiry of the period of lease i.e. 31.12.2005, the petitioner again applied for grant of lease/renewal of lease, which was rejected by the Collector vide impugned order dated 19.12.2005 (Annexure P-6). On a representation preferred against the said order, the State Govt. vide its order dated 7.12.2006 (Annexure P-8) dismissed the -4- representation, against which fhe petitioner has approached thls Court. 5. Leamed senior counsel vehemently contended that in identical petition - W.P. No. 3882/06 (Ramashray Yadav & Ors. Vs. State ofC.G. 8s Ors.) 85 W.P. (C) No.5333/06 (Sarita Bafna Vs. State of C.G. & Ors.), it has been held by this Court that in terms of sub- rule (1) of Rule 26 of the Mineral Concession Rules, 1960 (hereinafter referred to as "the Rules of -7960"), before refusing renewal of the mining lease, the State Govt. ought to have given opportunity of being heard. Learned senior counsel submits that only on the ground of violation of provision contained in Rule 26 (1) of the Rules of 1960, as no opportunity of hearing was afforded, petitions have been allowed. In his submission, the case of the petitioner is completely identical to the cases of Raniashray Yadav & Sarita Bafana (supra). 6. Learned senior counsel contended that the application of the petitioner for renewal of lease has been rejected by the Collector without affording any opportunity of hearing. It is further contended that the revisional authority also did not consider that in terms of provision contained in'Rule 26 (1) of the Rules of 1960, the petitioner was entifled to an opportunity of hearing by the Collector. It is then submitted that the petitioner has been chosen for discriminatory action, inasmuch as in number of other cases, lease has been continued, whereas, the petitioner has been treated differently, though he is similarly situated. Learned counsel for the petitioner submitted that no reasons have been recorded by the Collector while rejecting the application. It is further submitted that in view of various reports filed cumulatively as Annexure P-9 along with the petition, there is no threat to ecological balance and, therefore, the same situation existed before the authorities, on the basis of which, order dated 14.5.2001 (Annexure P-4) was passed and therefore the authority ought to have again invoked its power of relaxation and allowed the petitioner to carry on the operation of lese. Leamed senior counsel also submitted that even though the Collector rejected the application for renewal vide impugned order dated 19.12.2005 (Annexure P-6), from time to time the lease was extended by the orders filed cumulatively as Annexure P-7, which clearly go to show that there was no basis for rejection of the application for renewal of lease. 7. On the other hand, learned senior counsel for the State would submit in the case ofRamashray Yadav SB Sarita Bafana (supra), the relevant rules applicable in the case of quarry lease were not brought to the notice of the Court and the submission of the petitioner therein was accepted and on that basis, it was held that an opportunity of hearing was required to be afforded in terms of Rule 26 (1) of the Rules of 1960, which were wholly inapplicable. Leamed counsel for the State further submitted that the orders in the aforesaid two writ petitions could not be cited as -6- precedent, because, in those cases, it was omitted from consideration that present being the cases of grant of quarry lease under the Rules of 1996, provision of that Rule would be applicable and the provisions contained in the Rules of 1960 will have no application at all. Leamed counsel for the State then contended that there is no provision in the Rules of 1996 requiring the authority to afford an opportunity of hearing before passing the order on the application for renewal. He then argues that the lease of the petitioner was earlier cancelled by the Collector, but, later on, the State Govt. in exercise of its suo muto power of revision and by relaxing the rules vide its order dated 14.5.2001 (Annexure P-4), pennitted mining activity but subject to two important conditions, firstly- that there will be no renewal clause as the lease would not be renewed in the area and secondly- the lease would be only up to 31s* December,2005. Thereafter, a supplementary lease deed was executed vide Annexure P-5 and the petitioner fully accepted those terms and conditions in order to get the benefit of continuance of lease till 31st December, 2005. Having accepted those terms and conditions or order dated 14.5,2001 and enjoyed the lease, the petitioner fully knew that he had no right to renewal and as special cases, lease was allowed to continue till 31st December, 2005. Therefore, in his submission, the petitioner has no right of consideration for grant of renewal of his lease and the application for renewal was completely misconceived. Therefore, the Collector rightly rejected the application. He further submits that in the absence of there being any statuary obUgation to afford opportunity of hearing before rejection of renewal of lese, rejection of petitioner's application could not be challenged only on the ground of violation of principles of natural justice, particularly, when in view of the order dated 14.5.2001 (Annexure P-4) passed by the State Govt. and the supplementary lease (Annexure P-5) it was a foregone conclusion and no other view was possible in the matter, at the level of the Collector. He further submits that inspection report dated 26.3.2007 (Annexure R-4) clearly shows that there is natural imbalance and danger of flood in the village has increased. It is lastly submitted that the petitioner is not entitled to grant 6f lease in view of statutory prohibition engrafted in Rules 5 (2) (d) of the Rules of 1996 because the leased area is situated in the prohibited area and fhe petitioner was allowed to continue mining activity only by virtue of relaxation order dated 14.5.2001, up to 31st December, 2005 and thereafter in the absence of fhere being any relaxation by the State Govt., petitioner cannot claim, as of right, renewal of his lease as renewal would be in violation of the statutory provision. 8. I have considered the rival submisgions made by leamed counsel for the parties and perused the records. 9. The petitioner was granted quariy lease in respect of Ume stone and the lease deed was executed in favour of the petitioner in Form -VII, statutorily prescribed under the Rules of 1996, The said quarry lease was a statuary lease granted to the petitioner v' under the Rules of 1996, which is clear from bare reading of the clauses of the lease deed (Annexure P-3). The petitioner himself has stated, and it is not in dispute, that in the past, having found that the 18 leases in area situated in Ghodhari, Barbaspur & Mudena of District- Mahasamund were in violation of Rules 5 (2) (d) of the Rules of 1996, the Collector had cancelled the lease. This is clearly bome-out from order passed on 14th May, 2001 (Annexure P-4). That order further reveals that the State Govt., taldng into consideration certain humanitarian aspect invoked suo motu power of revision under Rule 58 of the Rules of 1996 and taking into consideration various aspects, relaxed the rule in exercise of its power of relaxation under Rule 66 of the Rules of 1996 with regard to the cases of those 18 leases, which also included the case of the petitioner. Further, the terms and conditions of the lease, upon such relaxation, were veiy explicit and unequivocal. Clause 2 further provided in no uncertain terms that where lease is sanctioned for longer period, it is extended only up to 31st December, 2005. 10. The aforesaid order dated 14th May, 2001 (Annexure P-4) came as a respite to all those leases which •^ere cancelled by the Collector earlier, which incidentally included the case of the petitioner as well. The petitioner readily accepted the order of the State Govt. dated 14.5.2001 and accepted the supplementary lease up to 31.12.2005, though without any renewal clause. This is evident from Annexure P-5. The supplementary lease was thus executed Ss'!i!>.. l."^ a ''saggg. i ^ .^ .4" 3'iS3t'" -9- in favour of the petitioner and the petitioner enjoyed the said lease which was granted to him on 7.6.2001 up to 31st December, 2005. The petitioner, as is obvious, did not challenge the order dated 14.5.2001, as on the date it was passed, it was beneficial to the petitioner. Therefore, having accepted the order of the State Govt. and having got supplementary lease for quarrying lime stone for a period of 31.12.2005, on speciGc conditions, that renewal would not be permissible, the petitioner has no claim whatsoever for renewal of lease beyond 31.12.2005. Neither the terms of lease nor any of the provisions contained in the Rules of 1996 imposed any statutory obligations on fhe competent authority to afford an opportunity of hearing before passing order on application for renewal of quarry lease. In this regard, it is apposite to refer to the provisions contained in Rules 17, 18 SB 19 of the Rules of 1996, which are reproduced as under: "17. Renewal of quarry lease- Every application for the renewal of a quarry lease shall be made at least one year before the date on which the lease is due to expire. 18. Disposal of applications for the grant or renewal of quarry lease (1) On receipt of an application for the grant or renewal of a quarry lease, its details shall be first circulated fof display on the notice board of the Zila Panchayat, Janpad Panchayat and Gram Panchayat concerned of the district and Collectorate of the district concerned. (2) The Sanctioning Authority, after making such inquiries as he may deem fit and after obtaining opinion of the respective Gram Panchayat, may sanction ..BS'*8"?^'-' -10- the grant or renewal of a quarry lease to the appUcant or refuse to sanction it. (3) Notwithstanding anything contained in sub- rule (2),all pending applications for the granf inclusive of such applications on which agreements have not been executed on the date of commencement of these rules shall be deemed to have been refused by the Sanctioning Authority. Fresh applications in this behalf may be made according to the procedure laid down under these rules. 19. Reasons for refusal to be recorded (1) Where the Sectioning Authority passes any order refusing to grant or renew a quarry lease, it shall communicate in writing the reasons for such order to the person against whom such order is passed. (2) Where it appears that the application is not complete in all material particular is not accompanied by the required documents, the Collector or any other Officer authorized by him in his behalf shall by a notice served by registered post in writing, requiring the applicant to make good the omission or as the case may be, to furnish the documents, not later than 30 (thirty) days from the date of communication of the said notice. An application for the grant of renewal of a quarry lease made under Rule 9 shall not be refused by the Sanctioning Authority only on the ground that application is not complete-in all material particulars or is not accompanied by the documents". 11. A perusal of the aforesaid provisions would show that there is no statutory obligation cast on the authority to afford any opportunity of hearing to the petitioner before rejecting -11 - application for renewal of lease. Moreover, in the present case, the conclusion is forgone, inasmuch as the petitioner was continuing to operate mining activity only on the strength of State Govt. orders dated 14.5.2001 (Annexure P-4) and supplementaiy lease granted to him vide Annexure P-5. The background in which supplementary lease was executed in favour of the petitioner and the terms and conditions of the lease read along with State Govt. order dated 14.5.2001, leave no manner of doubt that the lease could not be renewed beyond 31,12.2005. It is relevant to notice that the petitioner was allowed mining activity in an area, which is otherwise prohibited in terms of Rule 5 (2) (d) of the Rules of 1996, only by virtue of relaxation granted in a class of cases by the State Govt. vide its order dated 14.5.2001 to the extent and in the manner indicated in that order. In exercise of statutory power of relaxation conferred under Rule 66 of the Rules of 1996, the State Govt. sought to relax the prohibition so as to allow mining acthdty only up to 31.12.2005. After expiry of the said period, any grant/renewal by the Collector would come in the teeth of statutory prohibition engrafted in Rule 5 (2) .(d) of the Rules of 1996. Therefore, it was only in the domain of State's power to relax further, rigor of the provision and allow further continuance and it is not in the hands of the Collector. On the basis of the aforesaid legal position, as obtaining under the rules, operating in the field and applicable in the case on admitted facts, fhe order passed by the Collector and by the Revisional Authority cannot be questioned only on the ground that the petitioner was not - 12 - afforded an opportunity of hearing. Thus, even assuming for the arguments sake that in the absence of statutoiy obligation, principles of natural justice required an opportunity of hearing before rejection of application for renewal, present is a Bt case for applying the useless theory, treating it to be a case of forgone conclusion. 12. In the case of Aligarh Musliin University and Others Versus Mansoor Ali Khan, (2000) 7 Supreme Court Cases 529, Hontile Supreme Court has applied the principle that where on fhe admitted or indisputable facts or where only one view is possible, no relief could be granted only because opportunity of hearing was not afforded. In the case of State of Manipur & others vs. Y. Tokan Singh 8s Others, 2007 AIR SCW 1995, the Hon'ble Apex Court has held that where the. facts are admitted, principles of natural justice are not required to be applied, particularly, when the same would result in futility. Further relying upon the decision in the case of Kendriya Vidyalaya Sangathan and Others v. Ajay Kumar Das and Others, (2002) 4 SCC 503, it was observed that if the appointment orders are a nullity, the question of observance ofprinciples of natural justice would not arise. 13. Therefore, in the light of aforesaid principles, propounded in catena of decisions by the Supreme Court, I am of the view that the order rejecting application for renewal can not be challenged on the ground of violation of principles of natural justice. Though ^ESy-^^ ^^^•^ (s-o*^ ..-^ -13- m ^s learned senior counsel for the petitioner submitted fhat in view c fhe various communications filed cumulatively as Annexure P-9 there is no danger to ecological imbalance and grant of lease would not be against public interest, I am not inclined to accept the submission for the reason that firstly - the lease was granted to the petitioner only up to 31.12.2005 specifically stating that there will be no renewal in the background of what was considered by the State Govt. in its order dated 14.5.2001 and secondly- those materials can not made a basis to issue command to State Govt. to exercise its power ofrelaxation under Rule 66 of the Rules of 1996. Hence, there is no such relaxation for period beyond 31.12.2005, no lease could be granted or renewed, which would violate the statuary prohibition contained in Rule 5 (2) (d) of the Rules of 1996, which clearly stipulate that no quarry lease, or quarry permit shall be granted in respect of an area except for the mineral sand or bajri, in respect of land within a distance of 50 metre from river banks, nala (small water course) canal or nay natural water course, dams or nay water impounding structures. The petitioner has not disputed the contents ofletter dated 14.5.2001 (Annexure P-4), wherein, it has been clearly narrated that 18 leases, including that of the petitioner, were cancelled by the Collector on the ground of violation of the Rule 5(2) (d) of the Rules of 1996. 14. Next submission of leamed senior counsel relating to discrimination deserves rejection at the threshold in view of settled legal position that no negative equity could be enforced to perpetuate illegality. 15. Learned senior counsel for the petitioner sought to impress upon this Court by submitting that when the Stafe Govt. had decided to relax the rigor of the rules to allow mining activity up to 31.12.2005, vide its order dated 14.5.2001 (Annexure P-4), the decision was taken in the background of the then existing circumstances, which continue to exist even today and therefore, the State acted arbitrarily in not considering further relaxation of the Rules so as to allow mining activity, particularly when various reports, recommendations, documents filed collectively as Annexure P-9 show that mining lease could still be permitted without causing any threat or erosion of the banks of the river of Mahasamud nor having any adverse impact on the ecological balance in the area. To my mind that would be a matter for consideration of the State Govt. and not for the Court to dictate the State as to in what cases and to what extent, it should invoke its power of relaxation. Such power of relaxation is essentially in the domain of State's power and could not be appreciated by this Court. 16. In the aforementioned two cases of Ramashray Yadav & Sarita Bafana(supra), the arguments that provision contained in Rule 26 (1) of the Rules of 1960 required affording opportunity of hearing before rejection or refusal of application of the petitioner in those y'^T^ -15- '•^- cases found favour with the Court. Unfortunately, it was not brought to the notice of this Court that the Rules of 1960, relied upon in fhose cases had no application at all, because those cases as also the case of the petitioner are clearly cases of grant of quarry lease under the then M.P. Miner Minerals Rules 1996 (now C.G. Minor Minerals Rules 1996). The lease granted in favour of the petitioner, in the present case, placed on record as Annexure P-3 clearly shows that it was a quarry lease granted in respect of minor minerals under the Rules of 1996 and not a mining lease in respect of major minerals granted under Mineral Concession Rules 1966 so as to make applicable the provision contained in Rule 26 (1) of the Rules of 1960. The order passed in those cases do not reflect that the State sought to contest the matter. Therefore, finding recorded by the Court proceeded on an assumption with regard to the applicabilily of Rule 26 of the Rules of 1960, because it was not brought to the notice of the Court that the Rules of 1960 will be applicable. 7. The petitioner in the present case and the writ petitioners in the cases of Ramashray Yadav & Sarita Bafana (supra) were also granted quariy lease in respect of Ume stone and their leases were also cancelled by the Collector along with the cancellation of lease of the petitioner, clearly reflected from order dated 14.5.2001 (Annexure P-4). However, in those cases also, lease was renewed as in the case of the petitioner and they were also subjected to the same condition that the lease would be only up to 31.12.2005 •".^^ 'BFB'S^. -16- •\;--^@,^ and there will be no renewal of fhe lease. However, various relevant aspect of the matter particularly, statutory prohibition of grant of lease within the prohibited area as contained in Rule 5 (2) (d) of the Rules of 1996 were not brought to the notice of the Court and the petition turned only on non-affording of opportunity of hearing in terms of Rule 26 of the Rules of 1960, which, in view of what has been stated hereinabove, have no application in the case of quarry lease. In my considered opinion,