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HIGH COURT OF CALCUTTA
Anil Kumar Sen
SERAJUDDIN AND CO. - Appellant
Versus
THE STATE OF ORISSA - Respondent
Civil Rule 2013 (W) Of 1967
Decided On : FEBRUARY 26, 1971
MINERAL CONCESSION RULES, 1949 - RULE 28A - MINERAL CONCESSION RULES, 1960 - RULE 31 - MINES AND MINERALS (REGULATION AND DEVELOPMENT) ACT, 1948 - SECTION 13 - GOVERNMENT GRANTS ACT, 1895 - SECTION 2 - REVOCATION OF MINING LEASE - NATURAL JUSTICE - MERGER OF ORDERS - WRIT PETITION - MAINTAINABILITY - JURISDICTION OF HIGH COURT.
Fact of the Case:
The petitioner, a firm registered under the Indian Partnership Act, 1932, challenged the validity of an order dated September 22, 1967, passed by the Secretary, Department of Mining and Geology, Government of Orissa, revoking a mining lease granted to it in 1955. The petitioner's application for the grant of a mining lease was made and disposed of under the Mineral Concession Rules, 1949. The grant was made on December 6, 1949. However, the formal lease was not executed within six months from the date of the grant or from the date when Rule 28A was incorporated into the Rules in 1953. Therefore, the grant stood revoked by the operation of law. Despite the statutory revocation, the State Government continued to correspond with the petitioner since 1958 for the purpose of having a formal lease executed. The petitioner contended that the order of revocation was void as it was passed without giving it an opportunity to show cause, and that the impugned order dated September 22, 1967, was based on the void order of revocation. The respondents contended that the order of revocation had merged into the order passed by the Central Government in revision, and that the petitioner could not challenge the impugned order without challenging the order of the Central Government.
Finding of the Court:
The Court held that the order of revocation dated April 4, 1962, passed by the State Government, was void as it was passed in breach of the principles of natural justice. However, the petitioner could not challenge the impugned order dated September 22, 1967, as the order of revocation had merged into the order passed by the Central Government in revision, and the petitioner had not challenged the order of the Central Government. The Court also held that the grant stood revoked by the operation of law under Rule 28A of the Mineral Concession Rules, 1949, and that there was no scope for the State Government to revoke the grant under Rule 31 of the Mineral Concession Rules, 1960.
Issues: 1. Whether the order of revocation dated April 4, 1962, passed by the State Government, was void for violating the principles of natural justice? 2. Whether the petitioner could challenge the impugned order dated September 22, 1967, without challenging the order of the Central Government passed in revision? 3. Whether the grant stood revoked by the operation of law under Rule 28A of the Mineral Concession Rules, 1949?
Ratio Decidendi: 1. The Court held that the order of revocation dated April 4, 1962, passed by the State Government, was void as it was passed in breach of the principles of natural justice. The Court relied on the decision of the Supreme Court in the case of Ram Swarup v. Shikar Chand, where it was held that an order passed without giving an opportunity to the affected party to show cause is void. 2. The Court held that the petitioner could not challenge the impugned order dated September 22, 1967, without challenging the order of the Central Government passed in revision. The Court relied on the decision of the Supreme Court in the case of Madan Gopal Rangta v. Secy, to the Govt. of Orissa, where it was held that an order passed by the State Government merges into the order passed by the Central Government in revision, and that the petitioner cannot challenge the order of the State Government without challenging the order of the Central Government. 3. The Court held that the grant stood revoked by the operation of law under Rule 28A of the Mineral Concession Rules, 1949. The Court held that the grant was revoked by the operation of law as the formal lease was not executed within six months from the date of the grant or from the date when Rule 28A was incorporated into the Rules in 1953.
Final Decision: The writ petition was dismissed.
( 1 ) IN this writ petition the petitioner, Serajuddin and Co. , a firm registered under the Indian Partnership Act. 1932, disputes the validity of an order dated September 22, 1967 passed by the Secretary, Department of Mining and Geology, Government of Orissa.
( 2 ) IN order to appreciate the challenge and the true nature of the order impugned in this writ petition it would be necessary to recount in short the facts which led to the said order. On December 3. 1949 the respondent No, 1. State of Orissa, invited application from the petitioner for grant of a mining lease under the Mineral Concession Rules, 1949 (hereinafter referred to as the said Rules of 1949 ). Such Rules were framed by the Central Government in exercise of its powers under Section 5 of the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948) (hereinafter referred to as the Act of 1948 ). Both the Act and the Rules were subsequently replaced by new ones viz. . Mines and Minerals (Regulation and Development) Act, 1957 (67 of 1957) and the Mineral Concession Rules, 1960.
( 3 ) IN response to the said application on December 6. 1949 the petitioner applied for grant of a mining lease in respect of 93 and odd acres of land in village Gurda, P. S. Chamakpur. District-Keonjhar in the State of Orissa. The area on final assessment is found to be 99 acres but nothing turns on the difference in the area. The application of the petitioner along with that of others was considered by respondent No. 1 and by an order dated May 16, 1955 the said respondent directed granting of the mining lease in respect of the said area in favour of the petitioner. This grant was made subject to the conditions which the State Government would propose to incorporate in the lease deed of which the petitioner would be apprised being accepted by him.
( 4 ) IN furtherance of the aforesaid grant on the very same date the said respondent offered to deliver possession to the petitioner on yearly licence for immediate commencement of the work on its accepting certain terms and conditions set out therein. The petitioner having accepted the said offer, the respondent No. 1 on July 27, 1955 directed possession of the said land to be made over to the petitioner with working permission for a year and with a promise to renew the permission from year to year till finalisation of the lease deed. Such possession was actually delivered on August 13, 1955. It appears that for three years no steps were taken on behalf of the respondent No. 1 for execution of a formal mining lease in accordance with the provisions of the said Rules of 1948 although representations therefore were made from time to time on behalf of the petitioner, some of which had been disclosed in the present writ petition as annexure G series. It is only on July 26, 1958 that the respondent No. 1 sent a draft lease to the petitioner for the purpose of executing a formal lease. The petitioner on August 22, 1958 sent back the draft with requisite modification to the Collector of Keonjhar for the final approval on behalf of the respondents. It appears that a formal date for execution of the document was thereafter fixed on behalf of the Collector and the petitioner on more occasion that one had the date for execution extended. At this stage on October 25, 1958 the petitioner made a representation to the respondents suggesting that an additional clause be incorporated into the lease deed to safeguard certain rights of the lessee brought in by the amended provisions of Rule 41 (1) (ii) of the said Rules of 1949. It appears that the matter again was lost sight of and the Collector even lost the requisite file. The petitioner however continued to made representations and send reminders to the respondent No. 1 or the Collector demanding a decision from the respondents on its suggestion to incorporate a new clause in the lease deed in consonance with Rule 41 (1) (ii) of the said Rules of 1949. In the meant
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