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2023 Supreme(J&K) 234
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
M.A. CHOWDHARY, J.
Ankit Kotwal, S/o. Sh. Kewal Krishan Kotwal - Petitioner
Versus
State of J&K Th. Commissioner/Secy., Industries & Commerce Department, Civil Secretariat, Srinagar & Ors. - Respondents
OWP No. 969 of 2014, IA Nos. 491 of 2015 & 1320 of 2014
Decided On : 21-09-2023
For the Petitioner:Mr. V.R. Wazir, Sr. Advocate with Mr. Abhishek Wazir.
For the Respondent:Mr. K.D.S. Kotwal, Dy. AG, Mr. Sunil Sethi, Sr. Advocate with Mr. Nitin Parihar.
The main legal point established is that the applicant who applies earlier in time has a preferential right for consideration of lease, and compliance with the amended rules is crucial for lease consideration.
Headnote:
Mining Lease - Preferential Right - Mines and Mineral (Development & Regulation) Act, 1957 - Jammu & Kashmir Minor Mineral Concession Rules, 1962 - SRO 105 of 2016
Fact of the Case:
The petitioner and respondent No. 5 applied for grant of Minor Lease of Minor Minerals. The applications were found to be superimposing each other. The Committee's report favored the petitioner, but was later contradicted. The official respondents decided in favor of respondent No. 5 due to preferential right based on application date.
Finding of the Court:
The court found that the official respondents were within their competence to decide the preferential right of the applicants. The petitioner's claim was declined in favor of respondent No. 5 based on the application date and the preferential right under the rules.
Issues: The issues revolved around the preferential right of the applicants, the application processing timeline, and the applicability of relevant sections and rules.
Ratio Decidendi: The court held that when the applicants are eligible, the one who applied earlier in time gets a preferential right for consideration of lease. The court also emphasized the importance of complying with the amended rules for lease consideration.
Final Decision: The petition was found devoid of merit and dismissed along with connected application(s).
ORDER :
1. Factual matrix of the case is that the official respondent Nos. 1 to 4 received two applications for grant of Minor Lease of Minor Minerals on 23.02.2013 and 04.03.2013 from the respondent No. 5 and the petitioner respectively with regard to a block in river bed of Chenab at Village Parshela, Prem Nagar, Doda comprising of Survey No. 551 and the site plans submitted by both the applicants were referred to the Coordinator, Geology & Mining Department, Jammu for physical verification, who after physical verification of the sites as per the site plans reported that the areas applied for by these applicants are completely superimposing each other.
2. Vide order 27.11.2013, a Committee of officers was constituted to examine the applications in light of the Section 11 of the Mines and Mineral (Development & Regulation) Act, 1957 (hereinafter referred to as the “Act”), enabling the respondent No. 2-Directorate of Geology & Mining, J&K to dispose of the applications on merits. The Committee submitted its report on 11.02.2014, observing that the application of the petitioner, namely, Ankit Kotwal has superior claim over the application of respondent No. 5, namely, Saleem Raza Wani; that the report of the Committee was examined by the mineral section of the respondents and upon examination, it was noticed that the Committee had not considered the matter in its right perspective and the matter was again referred to the Committee vide letter dated 18.03.2014 for scrutiny/ re-examination in the light of the necessary notings/scrutiny conducted by the official respondents to justify their report; that the Committee vide letter dated 24.04.2014 instead of re-examining the matter and submitting a conclusive report/recommendations, submitted para-wise reply of the observation made by the respondents, contradicted its earlier report, without specific findings; that this para-wise reply of the Committee on examination, was also found unsatisfactory and against the mandate of law by the official respondents and in absence of any specific recommendation or proposal by the Committee, in light of the provision of Section 11 of the Act, the entire report of the Committee was not accepted by them.
3. The official respondents having regard to the applications for the same block and having fulfilled the primary requirements, as prescribed under relevant rules, decided that the application of the respondent No. 5 was received by the respondents on 23.02.2013, whereas the application of the petitioner had been received on 04.03.2013, as such, the respondent No. 5 had a preferential right in terms of Sub-Section 2 of Section 11 of the Act & Rule 32 of the Jammu & Kashmir Minor Mineral Concession Rules, 1962 (hereinafter referred to as the “Rules of 1962”).
4. The Directorate of Geology & Mining vide Communication No. 1522/MCC/DGM/MM/12/1047-48 dated 11.06.2014 informed the petitioner that his application for grant of Mining Lease of Minor Minerals at Village Parshela, Prem Nagar Thathri, District Doda for an area of over 2.19 hectares cannot be processed further, as the same overlapped with the area applied by the respondent No. 5 on 23.02.2013.
5. The petitioner having been aggrieved of the Communication dated 11.06.2014, filed the above titled writ petition, seeking Writ of Certiorari quashing the aforesaid Communication, declining grant of Mining Lease of the aforesaid Minor Minerals to the petitioner and any other writ, order or direction, which this Court may deem fit and proper in the facts and circumstances of the case be issued in favour of the petitioner and against the respondents.
6. Mr. V.R. Wazir, learned Senior counsel assisted by Mr. Abhishek Wazir, Advocate for the petitioner, argued that the petitioner had filed an application for Mining Lease on 04.03.2013, whereas the respondent No. 5 filed his application on 07.05.2013 and during processing of the applications of both the applicants, i.e., the petitioner as well as respondent No. 5
