AHIR BHAGWAN BHIMSIN... v. STATE OF GUJARAT THR...

for the petitioner submitted that mining lease with regard to mining of limestone in respect of land bearing Survey No.133/1 admeasuring 16-59-22 hectare of village Inaj, Taluka, Veraval, District Junagadh was granted by the concerned respondent in favour of the petitioner on 22.11.1975. The lease deed was executed with regard to the land in question on 14.04.1978. The lease was granted for a period of 20 years. It is submitted that before completion of period of 20 years, petitioner submitted an application for renewal of mining lease on 11.10.1996. However, the respondent authority, by an order dated 25.08.2004, rejected the request of the petitioner for renewal of mining lease on the grounds (i) the petitioner has not annexed the necessary documents like income-tax clearance certificate and no mining due certificate; (ii) royalty amount has not been paid by the petitioner and thereby the petitioner has violated the condition of the agreement and (iii) the lease area in question falls under Gauchar land and the concerned Gram Panchayat has not granted consent for allotment of such land to the petitioner.

4. Learned counsel thereafter contended that petitioner preferred revision application under Section 30 of the Mines and Minerals (Development and Regulations) Act, 1957 (hereinafter referred to as 'the Act' for short) and Rule 54 of the

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Mineral Concession Rules, 1960 (hereinafter referred to as 'the Rules'). It is submitted that the revisional authority passed an order on 25.03.2010, by which, the respondent State was directed to renew the mining lease of the petitioner subject to the conditions that the petitioner should clear all the dues in time frame fixed by the State Government. The order dated 25.08.2004 was quashed and set aside by the revisional authority.

5. It is further submitted that the respondent State challenged the order passed by the revisional authority by filing Special Civil Application No.8522 of 2010 before this Court. However, the said petition was dismissed. In the meantime, the petitioner paid all the outstanding dues with regard to royalty, interest on royalty, dead rent and interest on dead rent. Though the petition filed by the respondent State came to be dismissed by this Court, the respondent State did not consider the request of the petitioner for renewal of the lease in question. It is further stated that the respondent State filed Letters Patent Appeal No.528 of 2012 against the order passed by the learned Single Judge. It is submitted that the Division Bench of this Court disposed of the said Letters Patent Appeal by an order dated 02.04.2012 and thereby direction was given to the respondent State to consider the application for renewal of lease submitted by the

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petitioner in accordance with law after giving opportunity of hearing to the petitioner within stipulated time limit. Learned Senior Counsel referred the directions given by the Division Bench of this Court in para 9 of the said order.

6. Learned Senior Counsel thereafter submitted that the respondent No.4, by impugned order dated 12.09.2012, rejected the application submitted by the petitioner for renewal of the lease in question. It is submitted that the petitioner has, therefore, preferred this petition.

7. Learned Senior Counsel has assailed the impugned order mainly on the ground that though the petitioner has paid all the outstanding dues of the respondent State with regard to the lease in question, the respondent No.4 has rejected the application for renewal on some other grounds, which is not permissible. It is submitted that when the revisional authority has specifically directed the respondent State to grant the renewal on condition of payment of outstanding dues by the petitioner, the respondent State could not have rejected the request of the petitioner for renewal of the lease in question. Learned Senior Counsel has referred paragraph 9 of the order passed by the revisional authority in which direction was given to the respondent State to renew the mining lease. Learned Counsel, at this stage, has placed reliance upon the

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decision rendered by the Hon'ble Supreme Court in the case of Dharam Chand Jain v. State of Bihar, reported in AIR 1976 SC 1433. Relying upon the said decision, it is contended that the Hon'ble Supreme Court has held that under Rule 54 of the Rules, when the Central Government allows the revision application and directs the State Government to grant licence to the applicant, the order must be deemed to be an order passed by the Central Government granting the prayer of the applicant for issue of the mining lease. Thus, the order of the Central Government leaves no discretion to the State Government to refuse to grant mining lease to the applicant.

8. Learned Senior Counsel Mr. Desai thereafter referred the observations made by the respondent No.4 in the impugned order and submitted that the respondent No.4 has not entertained the request of the petitioner though the petitioner supplied all the documents which were called for and demanded by the respondent No.4. It is submitted that the application for renewal is rejected on the ground that the lease area in question is Gauchar land and the petitioner has violated Rule 37(1) of the Rules by executing power of attorney in favour of Noormohammad Kalu Patani by which the rights in the lease are transferred in his favour. At this stage, it is submitted that the respondent State has not rejected the request of the petitioner for renewal in the year 2004 on

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the ground of execution of power of attorney in favour of Noormohammad Kalu Patani. It is submitted that the issue of Gauchar land was also not accepted by the revisional authority and the revisional authority directed the respondent State to renew the lease if the petitioner pays the outstanding dues of the State Government and therefore while passing the impugned order, respondent No.4 ought not to have considered the issue of Gauchar land.

9. Learned Senior Counsel Mr. Desai has thereafter placed reliance upon Section 26 of the Act and submitted that only the State Government is empowered to exercise the powers for considering the application of lease or renewal of lease. The respondent State has not produced any notification delegating powers in favour of present respondent No.4 and therefore the respondent No.4 is not empowered to pass the impugned order. Hence, this Court may quash and set aside the impugned order only on this ground.

10. Learned Senior Counsel thereafter submitted that though the application is filed for renewal in the year 1996, till date, petitioner is not able to carry out the mining activity and thereby he has suffered a loss. He, therefore, urged that the relief prayed for in this petition be granted.

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11. On the other hand, learned Assistant Government Pleader Mr. Antani has opposed this petition and at the outset raised a preliminary objection with regard to maintainability of the present petition. It is contended that the petitioner is having alternative statutory remedy of filing revision application before the revisional authority against the order impugned in the present petition. It is submitted that in the first round the petitioner infact approached before the revisional authority and therefore when the impugned order is passed by the respondent State, the petitioner ought to have filed the revision application. He, therefore, urged that this petition be dismissed only on this ground.

12. Learned Assistant Government Pleader thereafter contended that though the revisional authority has directed the respondent State to renew the lease on condition that the petitioner pays the outstanding dues of the respondent State with regard to the mining lease in question, the Division Bench of this Court, while disposing of the Letters Patent Appeal, permitted the respondent State to ask for the necessary details from the petitioner and petitioner was directed to supply such details. The State Government was also permitted to verify such details including the outstanding amount, if any and the decision was to be taken by the respondent State in

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accordance with law after giving an opportunity of hearing to the petitioner. It is submitted that pursuant to the order passed by the Division Bench of this Court in the aforesaid Letters Patent Appeal, the respondent State Government asked for the necessary details from the petitioner and after verifying the same, passed the impugned order rejecting the request of the petitioner for renewal of the lease in question. It is submitted that when the Division Bench of this Court has directed the respondent State to consider the application for renewal of the lease in accordance with law and the petitioner was required to furnish the details including the payment, it cannot be said that the respondent State was required to renew the lease as per the direction given by the revisional authority on payment of outstanding dues by the petitioner.

13. Learned AGP thereafter submitted that the petitioner has carried out the mining operation in violation of Rule 37(1) of the Rules. In fact the petitioner has executed power of attorney and thereby transferred his lease in favour of Noormohammad Kalu Patani. Learned AGP referred Rule 37 of the Rules and the power of attorney executed by the petitioner in favour of Noormohammad Kalu Patani, copy of which is produced on record along with the affidavit-in- reply filed by the State.

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14. It is further submitted that the mining lease in question falls under Gauchar land and the concerned Gram Panchayat had not given its consent for renewal of the lease. Therefore, the Deputy Collector submitted his opinion to the Collector vide communication dated 04.06.2002. It is further submitted that while considering the application of renewal, the respondent No.4 has observed in the impugned order that at the time of renewal the Rules applicable are required to be applied. The decision rendered by the Hon'ble Supreme Court in the case of Samantha v. State of Andhra Pradesh, reported in AIR 1997 SC 3297 was also considered by the respondent No.4 and thereby respondent No.4 has not committed any illegality as alleged by the petitioner.

15. Learned AGP thereafter submitted that the impugned order passed by the respondent No.4 - Officer on Special Duty of Industries and Mines Department, can be treated as the order passed by the State Government, as the impugned order has been passed in the name of Hon'ble the Governor of State of Gujarat. He, therefore, submitted that there is no violation of Section 26(2) of the Act, as alleged by the learned advocate for the petitioner.

16. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it is required to be

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noted that though it is contended by the respondent authority that petitioner is having alternative remedy of filing revision before the Revisional Authority within a period of three months and therefore this petition may not be entertained, the said contention is not entertained in the facts of the present case and more particularly when the present petition is pending for hearing before this Court since 2012 and therefore, after a period of 7 years, petitioner cannot be relegated to file revision application before the Central Government.

17. It emerges that the petitioner has challenged the order dated 12.09.2012 passed by respondent No.4 by which the application submitted by the petitioner for renewal of lease for the purpose of excavation of limestone with regard to the land bearing Survey No.133/1 admeasuring 16-59-22 hectare of village Inaj, Taluka, Veraval, District Junagadh is rejected. The petitioner has further prayed that the direction be issued to respondent No.1 to grant renewal of the lease for the aforesaid purpose. The respondent authority executed the lease deed in favour of the petitioner for the land in question on 14.04.1978 for a period of 20 years. Before completion of 20 years, an application for renewal of mining lease was submitted on 11.10.1996. However, the said request was not entertained by the respondent authority vide

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order dated 25.08.2004. The petitioner, therefore, filed revision application before the Revisional Authority. The Revisional Authority allowed the said revision application vide order dated 25.03.2010 and thereby directed the respondent State to renew the mining lease of the petitioner subject to the condition that the petitioner should clear all the dues in time frame fixed by the State Government.

18. At this stage, it is required to be noted that contention of learned counsel appearing for the petitioner is that in view of the aforesaid order passed by the Revisional Authority, State Government ought to have renewed the lease in favour of the petitioner as the petitioner has cleared all the dues within stipulated time limit. However, according to this Court, the said submission is misconceived, in view of the fact that against the order passed by the Revisional Authority, respondent State filed Special Civil Application No.8522 of 2010 before this Court. The said petition was dismissed and thereafter Letters Patent Appeal No.528 of 2012 was filed before the Division Bench of this Court. The Division Bench of this Court has disposed of the said Letters patent Appeal vide order dated 02.04.2012 with a direction to the respondent State to consider the application for renewal of lease in accordance with law after giving opportunity of hearing to the petitioner. Para 9

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of the said order reads as under:

"9. Considering the facts and circumstances, we find that the following directions shall meet with the ends of justice -

a) The appellant herein shall communicate to the respondent no.1original lease holder within 15 days from today the details which he is required to submit to the State Government.

b) After receipt of the communication, within 30 days, the respondent no.1original lease holder shall submit the details.

c) Within 15 days thereafter, the details so submitted by the respondent no.1original lease holder shall be verified by the State Government including the amount if any outstanding and within two weeks thereafter, necessary communication shall be made.

d) Upon the receipt of the aforesaid communication, the respondent no.1original leaseholder shall comply with the further requirement including the payment if any to be deposited with the State Government within three weeks therefrom.

e) Thereafter, the application for renewal of the lease shall be considered by the State Government in accordance with law after giving opportunity of hearing to the applicant and decision shall be rendered within six weeks after compliance of the direction by the applicant as referred to hereinabove."

19. Thus, if the aforesaid order passed by the Division Bench is carefully seen, it is revealed that the liberty was reserved to the State

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Government to ask for certain details from the petitioner and after receipt of the said details including the amount of payment, the respondent State was directed to decide the issue. Therefore, it cannot be said that merely because the petitioner has paid the outstanding dues of the lease in question as per the direction issued by the Revisional Authority State Government was bound to renew the lease for the land in question.

20. The decision rendered by the Hon'ble Supreme Court in the case of Dharam Chand Jain (supra), upon which reliance is placed by the learned counsel for the petitioner, is not applicable to the facts of the present case as stated hereinabove. In the said case, the Hon'ble Supreme Court has observed that under Rule 54 of the Rules, the Central Government acts as a Revisional Tribunal against the order passed by the State Government and therefore when the Central Government allowed the revisional application and directed the State Government to grant licence to the applicant, the order must be deemed to be an order passed by the Central Government granting the prayer of the applicant for issuance of mining lease. Therefore, the order of the Central Government leaves no discretion to State Government to refuse to grant mining lease to the applicant. This Court does not dispute the proposition of law laid down by

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the Hon'ble Supreme Court in the aforesaid decision. However, as discussed hereinabove, the order of the Revisional Authority was challenged before this Court and ultimately the Division Bench of this Court directed the State Government to ask for the details including the amount, if any, outstanding from the petitioner; and after verifying the said details and affording an opportunity of hearing to the petitioner, the State Government was directed to decide the issue.

21. It is further reflected from the record that after the order was passed by the Division Bench of this Court giving direction to the State Government, State Government asked for certain details from the petitioner. As observed in the impugned order, petitioner could not provide all the details and therefore once again opportunity was given him to supply the necessary details. Ultimately, after considering the submissions of the petitioner and after verifying the details supplied by the petitioner, the respondent authority rejected the request of the petitioner for renewal of the lease mainly on the ground that the petitioner has executed power of attorney in favour of one Patni Noormohammad Kalu, which is in violation of Rule 37 of the Rules. Further, the area of lease in question is a Gauchar land and therefore the opinion of the Gram Panchayat was also asked and Gram Panchayat

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has stated that the area in question falls within Gauchar land. The respondent authority has, therefore, rightly placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Samatha v. State of A.P., reported in

AIR 1997 SC 3297.

22. It is observed by the respondent authority that at the time of considering the application for renewal of the lease, the aspect whether the area demanded is falling within the Gauchar land or not, is required to be considered. Thus, according to this Court, no error is committed by the respond authority while considering the aforesaid aspect also.

23. At this stage, provisions contained in Rule 37(1) of the Rules is required to be referred to, which provides as under:

"37 Transfer of lease. —

(1) The lessee shall not, without the previous consent in writing of the State Government [and in the case of mining lease in respect of any mineral specified in [Part A and Part B of] the First Schedule to the Act, without the previous approval of the Central Government]—

(a) assign, sublet, mortgage, or in any other manner, transfer the mining lease, or any right, title or interest therein, or

(b) enter into or make any [ bona fide ] arrangement, contract or understanding whereby the lessee will or may be directly

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or indirectly financed to a substantial extent by, or under which the lessee's operations or undertakings will or may be substantially controlled by, any person or body of persons other than the lessee:

[***]

[Provided further that where the mortgagee is an institution or a Bank or a Corporation specified in Schedule V, it shall not be necessary for the lessee to obtain any such consent of the State Government.]"

24. From the aforesaid provisions, it is clear that without previous consent in writing of the State Government, the lessee shall not assign, sublet, mortgage or in any other manner transfer the mining lease or any right, title or interest therein or enter into or make any bona fide, arrangement, contract or understanding whereby the lessee will be directly or indirectly financed to a substantial extent by which the lessee's operations or undertakings will be substantially controlled by any person other than the lessee.

25. The power of attorney executed by the petitioner in favour of Patni Noormohammad Kalu is produced on record at page 269 of the compilation i.e. along with affidavit-in- rejoinder. If the said power of attorney is carefully examined, it is revealed that the petitioner has in fact transferred the right and interest in the lease in favour of the power of attorney holder viz. Patni Noormohammad Kalu. It

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is not in dispute that petitioner is not carrying out activities of mining lease in the area in question. Thus, no error is committed by the respondent State in rejecting the request of the petitioner for renewal of the lease in question.

26. Reliance placed by learned counsel appearing for the petitioner upon the provisions contained in Section 26 of the Act is concerned, this Court is of the view that the said provision would not be applicable in the facts of the present case. On behalf of the respondent, further affidavit is filed wherein it is pointed out that under the Act, the Rules are framed by the Central Government whereby the powers have been delegated to the State Government with respect to grant or refusal of mining lease under Rule 26 of the Rules. As per the Rules of Business, power to grant or refuse the lease or renew the lease is assigned to Industries and Mines Department. Thus, in view of the above, this Court is of the view that when the concerned officer of the State Government has passed impugned order in the name of Hon'ble the Governor, State of Gujarat, no error is committed by the respondent State while passing the impugned order.

27. This Court has also gone through the impugned order passed by the respondent State while rejecting the application for renewal of the lease and this Court is of the view that no error

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is committed by the respondent State while rejecting the request of the petitioner. Therefore, no interference is required in the said order while exercising powers under Article 226 of the Constitution of India.

28. In view of the aforesaid discussion, petition is rejected. Notice is discharged.

(VIPUL M. PANCHOLI, J)

Jani

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