J.K. Cement Ltd vs State Of Raj. And Ors on 5 November, 2024

[Cites 20, Cited by 0]

Rajasthan High Court - Jodhpur

J.K. Cement Ltd vs State Of Raj. And Ors on 5 November, 2024

[2024:RJ-JD:41786] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 404/2013 J.K. Cement Limited having its registered office at Kamla Tower, Kanpur (UP) and its unit "JK White Cement Works" at Village Gotan, Tehsil Merta City, District Nagaur, Rajashan through its Manager (Liaison) P.K. Sharma S/o Shri K.D. Sharma aged about 52 years, R/o Gotan, District Nagaur (Raj.).

----Petitioner Versus

1. State of Rajasthan through the Secretary to the Government of Rajasthan, Mines Department, Jaipur.

2. The Director Directorate of Mines & Geology, Khanij Bhawan, Udaipur - 313001, Rajasthan.

3. The Assistant Mining Engineer, Department Mines and Geology, Gotan 342902, District Nagaur, Rajasthan.

4. Ram Vallabh Chouhan S/o Late Shri Chunni Lal Chouhan, R/o Plot No. 29 Shakti Nagar, IInd Road, Paota C Road, Jodhpur - 342001 and a partner in Gotan Lime Stone Khanij Udyog, Plot No.3, Paota B Road, Jodhpur - 342001.

5. Suresh Chouhan S/o Paras Ram Chouhan R/o Plot No. 3-B, Paota B Road, Jodhpur and a partner in Gotan Lime Stone Khanij Udyog, Plot No.3, Paota B Road, Jodhpur-342001.

6. Ramesh Chouhan S/o Late Chunni Lal Chouhan, R/o Plot No. 3-B, Paota B Road, Jodhpur and a partner in Gotan Lime Stone Khanij Udyog, Plot No.3, Paota B Road, Jodhpur-342001.

7. Ram Avtar Chouhan S/o Paras Ram Chouhan R/o R/o Plot No. 3-B, Paota B Road, Jodhpur and a partner in Gotan Lime Stone Khanij Udyog, Plot No.3, Paota B Road, Jodhpur-342001.

8. Gotan Lime Stone Khanij Udyog Private Limited, D-7, Shastri Nagar, Jodhpur.

9. Ultra Tech Cement Limited, B Wing, 2 nd Floor, Ahura Centre, MIDC, Mahakali Caves Road, Andheri (East) Mumbai - 400093.

----Respondent (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (2 of 35) [CW-404/2013] For Petitioner(s) : Mr. Sudhir Gupta, Sr. Advocate assisted by Mr. Ramit Mehta, Ms. Shweta Chauhan Mr. Tarun Dudia and Mr. Himanshu Soni For Respondent(s) : Mr. Kamlakar Sharma, Sr. Advocate assisted by Ms. Alankrita Sharma Mr. Anjay Kothari and Mr. Madhusudan Singh Rajpurohit For Respondent - : Mr. Mahaveer Bishnoi, AAG assisted by State Mr. Gaurav Bishnoi JUSTICE DINESH MEHTA CAV Judgment Date of Reserving : 25/09/2024 Date of Pronouncement :05/11/2024

1. The petitioner, a company registered under the provisions of the Companies Act, 1956 is engaged in manufacture and sale of white cement. At the time of establishment of its unit at Gotan, District Nagaur, the petitioner had purchased 4 sq.km land from the existing lessee - Gotan Limestone Khanij Udhyog (GLKU) for which, the lessee had taken prior consent from the State as required under rule 15 of the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as 'the Rules of 1986').

2. The same lessee (GLKU) entered into another agreement dated 01.11.1995 with the petitioner to transfer 2.041738 sq. km. or 204.1738 hectare of land out of total leasehold area of 10 sq. km.

3. The said lessee (GLKU) in turn moved an application dated 31.01.1997 and prayed that 204.1738 hectare land be allowed to (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (3 of 35) [CW-404/2013] be transferred to the petitioner for its captive use. In the application aforesaid, it was stated that the firm had received a sum of Rs.10 Lakhs towards investment already made for the development of the mine.

4. The aforesaid application came to be rejected by the Director (Mines) by order dated 11.08.1997, as according to him, there is no provision for part transfer under the Rules of 1986.

5. The petitioner (and not the lessee), preferred a revision petition against the above referred order dated 11.08.1997 passed by the Director (Mines) contending that the powers of relaxation be exercised, while highlighting that the State Government had granted relaxation to various applicants and even in petitioner's own case such relaxation was granted.

6. The revisional authority - Deputy Secretary to the Mining Department allowed the said revision petition filed by the petitioner vide order dated 02.12.1997 and remanded the matter back to the Director (Mines) with a direction to send a proposal for grant of consent for part transfer with corresponding proposal for relaxing the Rules.

7. It appears that after passing of the above order dated 02.12.1997, various correspondences took place between the petitioner and the State Government. The office of Mining Department - the Superintending Engineer sent a communication dated 11.03.2002 to the State Government inter-alia recommending that since the petitioner is in dire need of high grade limestone, it would be appropriate to grant relaxation in exercise of powers under rule 65 of the Rules of 1986. It was (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (4 of 35) [CW-404/2013] mentioned in the letter that the State Government had given consent for part transfer of mining lease to the petitioner on earlier occasion.

8. It is pertinent to note that while making above recommendation, the Superintending Engineer made a clear reference of an order dated 27.01.1999 and stated that the State has rejected proposal for relaxation by invoking powers under rule 65 of the Rules of 1986 to relax the Rules.

9. It is pertinent to note that the petitioner has neither made a reference of such order nor has it placed a copy of said order on record. The petitioner has nevertheless, placed on record a series of correspondence between the petitioner and various officers of the Mining Department in order to show that the petitioner has kept its cause of part transfer of 2.04 sq.km land alive (pursuant to the application dated 31.01.1997).

10. In the meanwhile, the mining lease No.45 of 1993 which was in the name of partnership firm M/s. Gotan Limestone Khanij Udhyog was allowed to be transferred to a new entity - Gotan Limestone Khanij Udhyog Pvt. Ltd (respondent no.8) vide order dated 25.04.2012.

11. On coming to know of the factum of mining lease being transferred, the petitioner moved a representation dated 16.08.2012 before the Assistant Mining Engineer, Gotan and prayed that the mining lease be not transferred to the newly formed private limited company, as it would adversely affect its rights to get mining rights qua 2.04 sq.km. land pursuant to the order dated 02.12.1997 passed by the State Government. (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (5 of 35) [CW-404/2013]

12. Meanwhile, the predecessor firm of the respondent no.8 (the lessee) made a representation dated 21.07.2012 before the Chief Minister and requested that its application dated 31.01.1997 seeking permission to transfer part of the mining lease (2.04 sq.km.) be rejected/disposed. Said lessee had enclosed a copy of the order dated 11.08.1997 passed by the Director (Mines).

13. In furtherance of above referred representation of the petitioner, the Deputy Secretary of the Mining Department sent a communication dated 13.08.2012 to the Director (Mines) inter-alia stating that the application for part transfer of the mining lease be disposed of as there is no provision for part transfer.

14. The Director (Mines) in turn passed the order dated 05.09.2012 and rejected the application dated 31.01.1997 whereby the respondent no.8 had sought part transfer of leasehold rights to the petitioner. While rejecting the said application, the Director (Mines) made reference of various orders, correspondences including the order of the State Government dated 27.01.1999 and 13.08.2012.

15. The petitioner has assailed the above order dated 05.09.2012 by way of the instant writ petition.

16. Having apprised the Court about the backdrop facts, as noted above, Mr. Sudhir Gupta, learned Senior Counsel appearing for the petitioner at the outset informed that out of various prayers, which the petitioner had made, prayer no. (i) and (iv) made in prayer clause have been rendered infructuous and the petition survives only qua prayer no. (ii) and (iii). (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (6 of 35) [CW-404/2013]

17. Mr. Gupta, learned Senior Counsel began his arguments by contending that the order dated 05.09.2012 passed by the Director (Mines) is illegal and contrary to facts and law involved in the present case.

18. Learned Senior Counsel firstly submitted that the power to accept application for transfer, including part transfer vests with the Director (Mines) whereas the order impugned though passed by the Director has been passed at the instance of State Government. He submitted that an appreciation of facts available on record so also the recitals in the impugned order would show that the impugned order was passed in furtherance of direction given by the State Government vide its letter dated 13.08.2012, which letter came to be issued pursuant to a representation made by the erstwhile firm (GLKU) in the office of the Chief Minister on 03.08.2012. He argued that the order thus, suffers from the vice of dictatorship.

19. Learned Senior Counsel argued that the Director (Mines) did not apply its mind at all and summarily rejected petitioner's application without assigning any reasons. He argued that the order dated 05.09.2012 rejecting petitioner's application is in the teeth of the order of revisional authority dated 02.12.1997, whereby the revisional authority had set aside the earlier order of the Director (Mines) dated 11.08.1997 and remanded the matter with clear stipulation that proposal for relaxation in the Rules be sent for part transfer.

20. Learned Senior Counsel submitted that the order dated 02.12.1997 was a judicial order passed in exercise of revisional (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (7 of 35) [CW-404/2013] powers and the same was binding. It was reiterated that the order passed by the State Government in exercise of revisional power under rule 47 of the Rules of 1986 should be given due respect and weightage and the directions given thereunder cannot be given a go-bye, in the manner done by the Director - respondent no.2.

21. He submitted that when the revisional authority had issued clear direction to send proposal for part transfer of the mining lease alongwith the proposal for relaxation of the rules while invoking rule 65 of the Rules of 1986, it was not open for the Director (Mines) or even the State Government in their administrative domain to turn a blind eye towards such recommendation. He argued that the impugned order dated 05.09.2012 is contrary to the order dated 02.12.1997 and hence, liable to be quashed.

22. Inviting Court's attention towards the letter dated 11.01.2002 (Annexure-27) filed with the rejoinder, learned Senior Counsel highlighted that the Director (Mines) in response to letter dated 07.01.2002 sent by the State Government had clearly observed that though there is no provision for part transfer under rule 15 of the Rules of 1986, but if the Government so decides, in the interest of mineral development and the State revenue, the provision of above rule can be relaxed in exercise of State's power under rule 65 of the Rules of 1986, as has been done on various other occasions, while giving examples of three such precedents.

23. Learned Senior Counsel argued that the impugned order rejecting the application has been passed under the political (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (8 of 35) [CW-404/2013] influence and the State Government went an extra mile to help the respondent no.8 in betraying the petitioner, with whom it had executed an agreement dated 01.11.1995 to transfer 2.04 sq.km. land after receiving a sum of Rs.10 Lakhs.

24. Learned Senior Counsel contended that the order under challenge has been passed in furtherance of a letter dated 21.07.2012 written by the firm (namely Gotan Limestone Khanij Udhyog), which was received in the office of Chief Minister on 03.08.2012, whereas the partnership firm had been converted to a Private Limited Company on 26.03.2012. He argued that since the partnership firm had ceased to exist, the letter dated 21.07.2012 signed by the partner of GLKU - the partnership firm was an attempt to mislead the State Government. It was argued that the impugned order dated 05.09.2012, which is a consequence of letter dated 21.07.2012 written by a firm which had ceased to exist, is liable to be quashed and set aside.

25. Learned Senior Counsel appearing for the petitioner in support of his contentions, relied upon the following judgments:

(i) Ishfaq Tantray vs. Khalid Jahangir : CCP(D) No. 8/2022 decided on 21.07.2023.

(ii) Neelam Srivastava vs. State of Uttar Pradesh & Ors., reported in 2021 SCC Online SC 610.

(iii) Indu Bhusan Jana vs. Union of India & Ors., reported in AIR 2009 Cal 24 (DB) Para No. 11.

(iv) The Siemens Engineering and Manufacturing Co. of India Ltd. vs. Union of India & Anr., reported in (1976) 2 SCC 981.

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(v) Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central -I & Anr., reported in (2008) 14 SCC 151.

(vi) Orient Paper Mills Ltd. vs. Union of India, reported in AIR 1969 SC 48.

(vii) High Court of Judicature at Madras Rep. By its Registrar General vs. Thirumalai & Ors., reported in 2023 SCC Online Mad 1808.

26. Mr. Mahaveer Bishnoi, learned Additional Advocate General appearing on behalf of the State vehemently refuted all the contentions. He read the operative part of the order dated 02.12.1997 and submitted that while deciding the revision petition, no specific directions as claimed by the petitioner were issued. He nevertheless, contended that the revisional authority while deciding a revision petition could not have issued a direction to send a proposal for relaxation in the Rules.

27. It was submitted that even if the order of the revisional authority dated 02.12.1997 is accepted to be an order of remand with a direction as claimed by the petitioner, the State Government in express terms had rejected petitioner's request to grant relaxation in the Rules for part transfer of the mining rights, as there was no concrete justification.

28. He invited Court's attention towards an order dated 27.01.1999 filed by the respondent - State and submitted that after the order dated 27.01.1999, the application of the petitioner stood rejected. He emphasized that regardless of such order, with connivance of the officers of the Directorate, the petitioner (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (10 of 35) [CW-404/2013] projected the said application dated 31.01.1997 to be pending, which fact was factually and legally incorrect.

29. Learned Additional Advocate General expressed concern that despite being aware of order dated 27.01.1999, the petitioner has not placed such order on record. He contended that instant writ petition is liable to be dismissed for concealment of material fact.

30. While pointing out that a copy of said order was endorsed to the petitioner, learned Additional Advocate General submitted that the attempt on the part of the petitioner in concealing such document, calls for stern action against the petitioner apart from dismissal of the writ petition on the ground of concealment.

31. He submitted that the petitioner cannot even plead inadvertence (in not placing said communication on record), inasmuch as reference of the State Government's letter dated 27.01.1999 has been made in a number of correspondence that have been placed on record. He was a bit startled while submitting that even the order impugned dated 05.09.2012 makes a specific reference of said order, still the petitioner has exhibited audacity of not even referring to such order much less producing its copy.

32. He submitted that the petitioner has not only concealed the order dated 27.01.1999 of the State Government from this Court, but has also misled the officers of the Mining Department in order to keep its otherwise dead rights alive.

33. He read various correspondences placed on record and submitted with surprise that how has the petitioner been able to secure a recommendation from the Superintending Engineer (Mines) on 11.03.2002! For his own satisfaction he read said (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (11 of 35) [CW-404/2013] recommendation and found that a specific reference of communication dated 27.01.1999 had been made therein. He then read the penultimate part of the recommendation dated 11.03.2002 and highlighted that even after passing of the order dated 27.01.1999, the State Government by way of its communication dated 30.07.1999 had reiterated that such request had been turned down by the State Government on 27.01.1999 and yet the Superintending Engineer had made such recommendation. He submitted that maybe, the petitioner has been making representation after representation, but after the order dated 27.01.1999, any request/representation or even recommendation was redundant.

34. Learned Additional Advocate General argued that for all practical purposes, the application which was filed by the partnership firm - GLKU, the predecessor of respondent no.8 had been rejected by the State. And simply because the Director (Mines) did not pass a formal order of rejection of the application, it cannot be said that the application was pending.

35. He argued that the order dated 02.12.1997 passed by the revisional authority in revision petition filed by the petitioner was only to the effect of sending proposal for part transfer alongwith a proposal for grant of relaxation in the Rules and once the request for relaxing the Rules had been turned down by the State Government vide its order dated 27.01.1999, the fate of the application dated 31.01.1997 was sealed. In other words, he claimed that the subject application stood rejected and the (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (12 of 35) [CW-404/2013] impugned communication dated 05.09.2012 is nothing but a formal order informing the factum of rejection of the application.

36. He argued that it may be correct that the firm GLKU had moved the Chief Minister by way of a representation dated 21.07.2012, but the State Government had not issued any sort of direction to the Director (Mines) and had simply observed that as there is no provision for part transfer, the application be disposed of accordingly.

37. He submitted that though a reference of the communication so sent by the State Government (dated 13.08.2012) has been made but the basis of the order dated 05.09.2012 has been the order dated 27.01.1999 passed by the State Government, whereby the request for relaxation in terms of rule 65 of the Rules of 1986 had been turned down. Mr. Bishnoi argued that the order impugned is a detailed order incorporating every relevant fact and no fault can be found therein.

38. Learned Additional Advocate General argued that the petitioner has not only failed to make a reference of the order dated 27.01.1999 in the memo of writ petition, but has chosen not to lay any challenge to the same. He argued that despite being aware of order dated 27.01.1999, the petitioner kept silence over the same and tried to keep the issue alive by writing representations after representation.

39. He emphasized that since the order dated 27.01.1999 has not even been challenged on any permissible ground, the petitioner cannot get anything, as the basis for the subject order is, the order of the State Government dated 27.01.1999 whereby (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (13 of 35) [CW-404/2013] the request for grant of relaxation was refused for want of valid justification.

40. Learned Additional Advocate General submitted that the recommendation dated 11.01.2002 which was sent by the Superintending Engineer cannot be given any credence inasmuch as the State Government had already rejected the proposal for relaxing rule 15 of Rules of 1986 and giving consent for part transfer of the mining lease.

41. He contended that the State Government had sent a communication dated 19.01.2002 and asked the lessee to file a fresh application, while sending a copy thereof to the petitioner, yet neither the petitioner nor the lessee chose to file the same. He submitted that in absence of fresh application, there was no justification for the officer of the respondent Department to give recommendation which has been given clandestinely.

42. It was also argued that the order dated 02.12.1997 passed by the revisional authority, upon which the petitioner's entire case hinges, had been passed in the revision petition that was filed by the petitioner without even impleading the lessee as a party.

43. He also argued that the power of relaxing the Rules is a discretionary power and the same cannot be claimed as a matter of right and further that in view of the provision contained in rule 15 of the Rules of 1986, mining lease in part cannot be transferred. He added that if the petitioner wanted the State to accede to its request for transfer, then, relaxing such condition in terms of rule 67 of the Rules of 1986 was sine-qua-non. (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (14 of 35) [CW-404/2013]

44. In support of his contention, learned Additional Advocate General relied upon the judgment of Hon'ble the Supreme Court rendered in the case of State of Uttar Pradesh & Ors. vs. Vikash Kumar Singh & Ors., reported in 2022 (1) SCC 347 and the judgment dated 05.09.2023 in the case of Periyaraj vs. The Chief Secretary, Social Welfare Department & Ors. : W.A. (MD) No. 1435/2023 rendered by the Madras High Court.

45. In order to contend that there was no direction by the State Government, he highlighted that the expression used in the communication dated 13.08.2012 is, to 'dispose of' the application and not 'dismiss' or 'reject'. He submitted that the Director (Mines) has simply passed a formal order of disposal of application dated 31.01.1997 so as to avoid any confusion.

46. Mr. Kamlakar Sharma, learned Senior Counsel appearing for the respondent nos. 4 to 8 invited Court's attention towards the application dated 31.01.1997 and contended that the said application seeking permission to transfer 204.1738 hectare area was filed by the erstwhile Gotan Limestone Khanij Udhyog (GLKU). He submitted that it is absolutely wrong to assert and contend that a joint application was filed by the petitioner and GLKU. He argued that since false averments have been made in Para No. 6 and prayer clause of the memo of petition, the petition is liable to be dismissed on this count alone.

47. It was also argued that the rejection of said application dated 31.01.1997 does not give any right to the petitioner to challenge the same, simply because the mining area was proposed to be transferred to it. He argued that the petitioner can in no (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (15 of 35) [CW-404/2013] manner be treated to be an 'aggrieved person' so as to maintain the revision petition and the present writ petition.

48. While contending that the revision petition itself was not maintainable, he argued that in any case, said revision petition could not have been decided without impleading the lessee i.e. M/s. Gotan Limestone Khanij Udhyog (partnership firm) and therefore, the revisional order dated 02.12.1997 obtained behind the back of the lessee or its successor is void ab-initio.

49. It was contended that the application dated 31.01.1997 came to be rejected by the Director (Mines) vide its order dated 11.08.1997 and the copy thereof was endorsed to the partnership firm (Gotan Limestone Khanij Udhyog) and since the firm chose not to pursue the said application any further, it did not take up any remedy thereagainst. Consequently, the order dated 11.08.1997 attained finality. Any modification/alteration or annulment thereof at the instance of petitioner can neither compell the said partnership firm to transfer 204.1738 hectare land to the petitioner company nor can the State ask/direct the firm or its successor to transfer the mining lease in furtherance of the application dated 31.01.1997.

50. Inviting Court's attention towards the application dated 31.01.1997, learned Senior Counsel submitted that relaxation under the Rules of 1986 was not even claimed in the application and therefore, the revisional authority could not have directed the Director (Mines) to send recommendation for relaxation of rules, particularly when rule 15 of the Rules of 1986 provided clear embargo on part transfer of mining area.

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51. Learned Senior Counsel highlighted that the petitioner proceeded to prefer the revision petition at its own without even informing the lessee - the partnership firm, let alone impleading it as an applicant or respondent. He argued that any order obtained behind back of the partnership firm is liable to be ignored like a waste piece of paper.

52. Inviting Court's attention towards the order dated 27.01.1999 (Annexure-R/4/1), Mr. Sharma argued that the petitioner has concealed the same and has thus, made an attempt to mislead this Court. He added that said order dated 27.01.1999, which was passed in furtherance of the letter dated 22.08.1998 sent by the Directorate completely closed the case, as the State Government had even rejected the request for relaxing the Rules in purported exercise of powers under section 65 of the Rules of 1986. He iterated that the petitioner is guilty of concealing material facts so also the documents, for which, the petition filed by it is liable to be dismissed with heavy cost.

53. Apart from praying for dismissal of the writ petition on the ground of the conduct, learned Senior Counsel submitted that since the State Government in unambiguous terms had expressed that in absence of 'solid justification', it was not ready to grant relaxation in the Rules, it was incumbent upon the petitioner to assail the same. He added that since said order dated 27.01.1999 has not been challenged by the petitioner anywhere, and even in the present writ petition, no indulgence can be granted to the petitioner.

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54. He thus, submitted that in the face of the order dated 27.01.1999, whereby the State Government had rejected the proposal of the Directorate to grant relaxation, no fresh adjudication can be made so far as relaxation under rule 65 of the Rules of 1986 is concerned.

55. It was further submitted by Mr. Sharma that as a matter of fact, the rights in furtherance of the application dated 31.01.1997 stood closed, and such position was accepted not only by the lessee but also by the proposed transferee - the petitioner. He contended that it was only after 3-4 years, with the connivance of officers including the Superintending Mining Engineer, the petitioner could persuade and secure the letter dated 11.03.2002 suggesting that it would be appropriate to grant permission to partially transfer the mining area and submitted that such communication is liable to be ignored.

56. While maintaining that said communication dated 11.03.2002 sent by the Superintending Mining Engineer was a stage managed letter, Mr. Sharma highlighted that even the said letter also makes a reference of the order of the State Government dated 27.01.1999, whereby the State had refused to consider proposal for relaxation.

57. Learned Senior Counsel contended that the petitioner has been corresponding and persuading the officials of the Mining Department behind the back of the petitioner. He added that it is rather surprising to note that the officials of the Mining Department did not even endorse copies of such communications to the lessee or its partners. He argued that it is apparent that the (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (18 of 35) [CW-404/2013] officers of the Mining Department had kept the lessee - Gotan Limestone Khanij Udhyog in dark and it was only in the year 2012, when the answering respondents (respondent nos. 4 to 8) learnt that the petitioner company is pursuing an otherwise dead cause, intervention at the level of the Chief Minister was sought to ensure formal order of disposal of the application dated 31.01.1997.

58. Responding to the petitioner's argument that the office of Chief Minister and the State Government has issued direction to the Director (Mines), Mr. Sharma submitted that no influence undue or otherwise was exerted by the State Government inasmuch as letter dated 13.08.2012 sent by the Deputy Secretary to the Mines was only for disposal of application seeking part transfer of mining rights in accordance with law.

59. It was submitted by Mr. Sharma that maybe the impugned order dated 05.09.2012 passed by the Director (Mines) makes a reference of the order dated 13.08.2012, but it cannot be said that the order was passed at the instance of the State Government, particularly when the Director (Mines) had considered the factual and legal matrix in detail and even made a reference of the order of the State Government dated 27.01.1999.

60. Learned Senior Counsel further invited Court's attention towards the letter dated 30.07.1999 sent by the State Government and contended that the fact that the Director (Mines) and his subordinates were more than willing to serve the cause of the petitioner is writ large. He submitted that in spite of earlier communication dated 27.01.1999, the Director (Mines) proceeded to send another letter (dated 23.06.1999) in response whereof the (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (19 of 35) [CW-404/2013] State Government had to send a communication dated 30.07.1999 reiterating that the decision with regard to relaxation has already been taken by the State Government vide its earlier order dated 27.01.1999.

61. He submitted that the petitioner has been able to persuade some of the officials of the Mining Department and it is at the instance of the petitioner that the matter was tried to be re- opened again and again, though the same stood closed.

62. Inviting Court's attention towards the letter dated 11.01.2002, more particularly Para 1 thereof, learned Senior Counsel submitted that the application for part transfer of the area had been rejected and it had been observed by the Directorate that no application for part transfer of land is pending. It was further argued that the case as projected by the petitioner is a farce, as no application for part transfer of the mining area was pending consideration.

63. In the aforesaid factual backdrop, Mr. Sharma argued that the application filed by the petitioner on 31.01.1997 stood rejected but the petitioner was projecting and portraying other parties that its application for part transfer of the land is pending, due to which, the partner of the firm - respondent no.4 was constrained to approach the office of the Chief Minister with the request to issue direction to the Mining Department to pass formal order of rejection of the application dated 31.01.1997.

64. He submitted that nothing illegal or irregular can be alleged in respondent no.4's approaching the Chief Minister and (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (20 of 35) [CW-404/2013] consequential order which has been passed by the Director (Mines) on 05.09.2012.

65. Mr. Sharma cited following judgments::

(i) Sciemed Overseas INC vs. BOC India Ltd. & Ors., reported in 2016 (3) SCC 70.

(ii) State of U.P. & Ors. vs. Vikash Kumar Singh & Ors., reported in 2022 (1) SCC 347.

(iii) PTR Exports (Madras) Pvt. Ltd. & Ors. vs. Union of India, reported in 1996 (5) SCC 268.

(iv) Municipal Council Gondia vs. Divi Works & Suppliers, HUF & Ors., reported in 2022 SCC ONL SC

247.

(v) State of Rajasthan vs. Sharvan Kumar, reported in 2023 SCC ONL SC 898.

(vi) Canara Bank & Ors. vs. Debasis Das & Ors., reported in 2003 (4) SCC 557.

66. Mr. Sudhir Gupta, learned Senior Counsel appearing for the petitioner in rejoinder reiterated that the application was a joint application and in this regard he took the Court through the application dated 31.01.1997, more particularly Para No.3 thereof and submitted that since an affidavit of the petitioner company was enclosed, it cannot be said that the application was not a joint application.

67. Strong reliance was placed upon the judgment of Hon'ble the Supreme Court in the case of Uttar Pradesh State Road Transport Corporation vs. Assistant Commissioner of Police, reported in 2009 (3) SCC 634 (Para No.35).

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68. Mr. Gupta invited Court's attention towards Para No.2 of memo of revision petition and submitted that since the revisional authority being a quasi-judicial authority had issued direction to submit the file for relaxation of the rules, the same was binding and the State Government could not have sit over such judicial discretion and direction and refuse to grant relaxation.

69. He argued that in the backdrop of factual matrix and the judgment dated 20.01.2016 of Hon'ble the Supreme Court, reported in (2016) 4 SCC 469, the petitioner's writ petition deserves acceptance. He prayed that a direction to the State Government be issued to pass formal order of relaxing the Rules, as has been proposed by the Director (Mines) and the State be directed to allow part transfer of 204.1738 hectare land to the petitioner in furtherance of the application dated 31.01.1997, while setting aside the order impugned dated 05.09.2012. Discussion & Findings:

70. Before proceeding further, it would be apt to go through the judgments, which the rival parties have cited in support of their contentions.

71. The judgments cited by Mr. Sudhir Gupta, learned Senior Counsel for the petitioner are thus:

(a) In the case of Ishfaq Tantray Vs. Khalid Jahangir., Hon'ble Apex Court has observed that a judicial order which has attained finality has to be given effect to and it can only be interfered or nullified by a higher judicial forum and the judgment of a court cannot be overruled by way of legislative measure, much less an executive act.

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(b) Neelam Srivastava vs. State of Uttar Pradesh & Ors., decided by Hon'ble Supreme Court rules that parties are not permitted to re-open the concluded judgments of the Court as the same tantamount to an abuse of the process of the Court so also have far reaching adverse effect on the administration of justice.

"Upon an order attaining finality, it matters little as to whether it was erroneous. A party aggrieved by an order has to work out his remedies within the legal framework. If an issue or the entire lis is concluded upon a finding being rendered and such finding remains unchallenged, it is no longer open to the party to undo the effect thereof at any subsequent stage or collaterally unless it is demonstrated that the finding was obtained by fraud or the court lacked jurisdiction to pass the order. The hierarchy in the judiciary exists to afford litigants to climb up the ladder in pursuit of justice and to right a wrong committed at a lower level. But if a litigant accepts an order, he does it to his prejudice and binds himself thereby."

Above observations if read contextually, can go against the petitioner, as it has not laid any challenge to the order dated 27.01.1999.

(d) In the case of The Siemens Engineering and Manufacturing Co. of India Ltd. vs. Union of India & Anr., Supreme Court on the aspect of requirement for disclosure of reasons in a quasi-judicial proceeding, has held (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (23 of 35) [CW-404/2013] that every quasi-judicial order must be supported by reasons. The requirement to provide reasons for an order is a fundamental principle of natural justice, similar to the principle of audi-alteram-partem, and it should guide every quasi-judicial process.

(e) Further, in the case of Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central -I & Anr., it was observed by Hon'ble the Supreme Court that a purely administrative order which entails a 'civil consequence', must be consistent with the rules of natural justice. Even in the absence of express provision for affording an opportunity of pre-decisional hearing and in the absence of any express provision in respect of barring the giving of reasonable opportunity, the requirement of observance of principles of natural justice is to be read into the said provision.

(f) In the case of Orient Paper Mills Ltd. vs. Union of India, Apex court has held that no authority, regardless of its rank, can dictate the decisions of a judicial or quasi-judicial body and while acting as a quasi-judicial officers, they must ensure that their judgments are not swayed by administrative considerations or by directives from their superiors. If the discretion granted to a quasi-judicial tribunal is limited by such directives, it creates restrictions on their authority, which in turn, render the exercise of that authority fundamentally incompatible with the established principles of the judicial process.

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(g) Lastly, in the case of High Court of Judicature at Madras Rep. By its Registrar General vs. Thirumalai & Ors., the Madras High Court declined a request from the Registrar General to review a decision made by the court in its judicial capacity. The court noted that granting such a plea would undermine the integrity of the judiciary, which is grounded in its strong independence and the obligation to perform its duties impartially, without fear or favoritism. This Court is unable to discern the relevance of the judgment, including what has been observed in Para No. 26 of this case.

72. The judgments cited by learned Senior Counsel for the respondents (Mr. Sharma and Mr. Bishnoi) are discussed hereinfra:

(a) In the case of State of Uttar Pradesh & Ors. vs. Vikash Kumar Singh & Ors., while commenting upon the power of High Court to issue a writ of mandamus, directing the competent authority to provide relaxation in the qualifying service, it was observed by Hon'ble the Supreme Court that the decision to grant relaxation in the rules is up to the competent authority's discretion and cannot be claimed as a matter of right. If a deliberate choice is made not to grant the relaxation, simply because the rules allow for it, a writ of mandamus cannot be issued to compel the authority to provide the relaxation in qualifying service.

(b) In the case of Periyaraj vs. The Chief Secretary, Social Welfare Department & Ors., Division bench of Madras High Court has observed that the State Government is permitted to create provisions for relaxing the period in (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (25 of 35) [CW-404/2013] exceptionally rare situations. It is up to the State Government to make an appropriate decision after evaluating all relevant facts. The authority to grant relaxation is an exception and depends on the presence of objective criteria that satisfy the government.

(c) In the case of Sciemed Overseas INC vs. BOC India Ltd.

& Ors., Hon'ble Apex Court has observed that the justice system would be undermined if statutory restrictions were not placed on litigants who attempt to mislead the court with false evidence, especially in cases where the outcome relies on factual statements. The integrity of court proceedings cannot be compromised by parties using frivolous, vexatious, or insufficient grounds, or by relying on false evidence motivated by unrelated agendas or a desire to harass their opponents.

(d) In the case of PTR Exports (Madras) Pvt. Ltd. & Ors. vs. Union of India, Hon'ble Supreme Court has held that the authority to establish policy through executive decisions or legislation also includes the power to revoke that policy, unless it involves a malicious misuse of power or an abuse of authority. The doctrine of legitimate expectation does not apply when the relevant authority has the power to make decisions based on executive policy or legal provisions. The Court allows the authority to exercise its full range of options within its executive or legislative powers.

(e) In the case of Municipal Council Gondia vs. Divi Works & Suppliers, HUF & Ors., Hon'ble Supreme Court has ruled (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (26 of 35) [CW-404/2013] that a writ of mandamus should not have been issued by the High Court, for enforcing specific performance of the contract or work order in a writ petition filed under Article 226 of the Constitution of India. Given the lack of evidence and the existence of disputed facts, the High Court should not have issued the judgment.

(f) In the case of State of Rajasthan vs. Sharvan Kumar, Hon'ble Apex Court has observed that simply filing of an application does not automatically create any rights. The Government's power to amend is independent, and pending applications do not obstruct this authority. Applications should be processed within a reasonable timeframe; however, no individual has a vested right to the grant or renewal of a lease, nor can anyone assert a vested right to have their application handled in a specific manner using particular provisions.

(g) In the case of Canara Bank & Ors. vs. Debasis Das & Ors., Hon'ble Supreme Court has held that following the principles of natural justice is crucial when a quasi-judicial body is tasked with resolving disputes between parties or taking any administrative actions. Over time, through judicial interpretation, two rules have emerged as foundational principles of natural justice within both judicial and quasi- judicial or administrative processes. These rules represent the essential components of a fair hearing, grounded in the universal human sense of fairness and justice, which (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (27 of 35) [CW-404/2013] transcends specific races or nations and is shared by all people.

73. Having taken guidance from the precedents cited at Bar, let us move on to the facts of the case.

74. The instant writ petition impugns the order dated 05.09.2012 passed by the Director (Mines) on various counts. A perusal of the order aforesaid reveals that the same is nothing but a formal order of rejection of the application dated 31.01.1997, which was filed by the lessee - the partnership firm (GLKU), which application technically stood rejected on 27.01.1999.

75. According to this Court, the order oppugned does not as a matter of fact determine the fate of the application dated 31.01.1997, but formally communicates or conveys disposal thereof in light of the order of the State Government dated 27.01.1999.

76. A scanning of the record shows that the subject application filed by the partnership firm on 31.01.1997 (received in the office on 04.02.1997) came to be rejected by the Director (Mines) firstly on 11.08.1997, which order was challenged by the petitioner by way of revision petition and the revisional authority set aside the said order of the Director (Mines) and remanded the matter to the Directorate to send proposal for granting relaxation for part transfer of the mining lease. It is noteworthy that even such proposal which was subsequently sent by the Directorate vide letter No. 613 dated 22.08.1998 had been turned down by the State per-viam order dated 27.01.1999. Consequently, the (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (28 of 35) [CW-404/2013] application dated 31.01.1997 filed by the erstwhile partnership firm for all practical purposes stood rejected.

77. What is surprising is, that in spite of the fact that the said order dated 27.01.1999 passed pursuant to the proceedings taken up by none other than the petitioner, was served upon it, the petitioner intentionally did not place the same on record. Such act on the part of the petitioner is nothing short of concealment of material fact - the petition deserves to be dismissed on this solitary count.

78. Regardless of the above, even if such fact is ignored, what surprises this Court even more is, that the petitioner has not even chosen to challenge the same by taking legal recourse. Since the order dated 27.01.1999 passed by the State Government has attained finality, the petitioner cannot assert its rights, simply on the pretext that no formal order of disposal of application dated 31.01.1997 came to be passed.

79. It is noteworthy that the application dated 31.01.1997 had been rejected by the Director (Mines) on 11.08.1997 on the ground that the Rules of 1986 did not permit part transfer of the mining area. Against said order, which was not even communicated to the petitioner, it proceeded to prefer a revision petition under rule 47 of the Rules of 1986. It is rather unusual that the petitioner did neither join the lessee - erstwhile partnership firm (Gotan Limestone Khanij Udhyog) as a revision petitioner nor as a respondent. And then, the order dated 02.12.1997 came to be passed, which was never communicated to the lessee.

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80. That apart, the order of the State Government passed on 02.12.1997 was only to the effect of asking the Director (Mines) to send a proposal for relaxation in the Rules. Though legally speaking, there was nothing wrong or illegal in such order, but procedurally and technically considering the maintainability of the revision petition filed by the petitioner, in the present factual backdrop is not beyond pale of doubt.

81. Maybe, rule 47 of the Rules of 1986 provides a revision petition to be filed by an 'aggrieved person', but in the opinion of this Court, the petitioner can be said to be a person concerned but not a person aggrieved. Considering that the application for transfer of mining lease is required to be filed by the leaseholder and the same as a matter of fact was filed by the mining lease holder - the partnership firm, the revision petition filed by the proposed transferee could not have been entertained that too in the absence of the lessee.

82. According to this Court, unless the application of transfer is allowed by the State Government, the transferee does not get any semblance of right much less a right to maintain an appeal or revision.

83. In the case of Adi Pherozshah Gandhi vs. H.M. Seervai reported in (1970) 2 SCC 484, the Hon'ble Supreme Court considered the question about competence of the Advocate General of Maharashtra to maintain an appeal before the Bar Council of India against the order passed by the Disciplinary committee of the Bar Council of the State. In the concurring opinion forming majority, with reference to the above quoted (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (30 of 35) [CW-404/2013] definition of the phrase "person aggrieved" in Re Sidebotham, ex p Sidebotham reported in (1880) 14 Ch D 458 and while referring to the other cases too, it was observed:-

"From these cases it is apparent that any person who feels disappointed with the result of the case is not a 'person aggrieved'. He must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something. It is no doubt a legal grievance and not a grievance about material matters but his legal grievance must be a tendency to injure him. That the order is wrong or that it acquits some one who he thinks ought to be convicted does not by itself give rise to a legal grievance....."

84. Be that as it may. Since, the revision petition had been entertained and allowed nothing is required to be dilated upon on such aspect at this juncture. In any event, it was incumbent upon the petitioner to have at least keep the erstwhile partnership firm in the loop either by way of joining it as a petitioner or as a proforma respondent.

85. A perusal of the record suggests that pursuant to the order dated 02.12.1997, the Directorate had sent a letter No. 613 dated 22.08.1998 and sought relaxation in the Rules, but such request of the Directorate had been rejected by the State Government by order dated 27.01.1999, inter-alia, observing that there is no sound justification for relaxing the rules.

86. In the opinion of this Court, if the order dated 11.08.1997 of the Director (Mines) is read in conjunction with the order dated (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (31 of 35) [CW-404/2013] 27.01.1999, there remains no room for ambiguity that the fate of the application dated 31.01.1997 had been sealed.

87. As noticed above, the application dated 31.01.1997 had been rejected by the Directorate vide its order dated 11.08.1997 and if some life still remained or was infused by the revisional order dated 02.12.1997, that too had also blown out as a consequence of the order of the State Government dated 27.01.1999.

88. It is noteworthy that the application dated 31.01.1997 which was filed by the lessee was only to the effect of transfer of 2.04178 sq.km. land without any prayer for relaxing the rigours of rule 15 of the Rules of 1986 which clearly provided that the mineral rights in part cannot be transferred. The Revisional Authority had however asked the Director (Mines) to send proposal for relaxation, completely ignoring the fact that no prayer to such effect was made. In absence of any ground seeking relaxation, the State Government had refused to grant relaxation. Apart from the fact that such order has neither been placed on record nor has been challenged, the significant aspect is that no justification has been asserted by the lessee or even by the petitioner.

89. It is a fact on record that when the partnership firm came to know that the petitioner is trying to pursue an already extinguished right, the partner of the erstwhile lessee firm approached the office of the Chief Minister to ensure rejection of the application dated 31.01.1997, maybe in order to get a (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (32 of 35) [CW-404/2013] handicap in a dispute which seemed to have taken shape of a corporate battle.

90. Ideally, on 21.07.2012, the partnership firm had been dissolved and the respondent no.4 could not have written the letter as a partner of the firm. Such an attempt on part of the respondent no.4 can be branded as an irregular rather anxious step to avert any adverse order at the instance of the petitioner but can in no case be held as illegal in any manner, as prayed by the petitioner.

91. It is to be noted that pursuant to the letter dated 21.07.2012, which the respondent no.4 had written/handed over in the office of the Chief Minister, the Secretary (Mines) had directed the Director (Mines) to dispose of the application. True it is, that a passing reference of representation dated 21.07.2012 had been made therein, but what had ultimately been ordained by the State Government was - to dispose of the application as there was no provision for part transfer of the mining lease.

92. Such communication sent by the State Government cannot be said to be a direction or interference with a discretion of the Director, more particularly in present set of facts.

93. This Court hardly finds any substance in the argument of Mr. Gupta, learned Senior Counsel for the petitioner that the order dated 05.09.2012 is in the teeth of the revisional order dated 02.12.1997 passed by the State Government.

94. Being cognizant of the legal position that the order of the revisional authority is quasi-judicial and it should prevail over the administrative order of the State Government in case of a conflict (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (33 of 35) [CW-404/2013] between the two, this Court is firmly of the view that since the proposal for granting relaxation had specifically been turned down by the State Government by order dated 27.01.1999, neither the letter of the Deputy Secretary (Mines) dated 13.08.2012 can be said to be contrary to the revisional order dated 02.12.1997 nor the order under challenge dated 05.09.2012 can be quashed by holding that it suffers from the vice of dictatorship.

95. A simple look at a short but crisp order dated 05.09.2012, goes to show that that the Director (Mines) has dealt with each fact having bearing on the issue and recorded that the Director (Mines) by its order dated 11.08.1997 had rejected the application with forfeiture of the application fee and also that pursuant to the revisional order dated 02.12.1997, the Directorate had sent letter No. 613 dated 22.08.1998 recommending relaxation in the rules, but that too had been rejected by the State vide its order dated 27.01.1999.

96. According to this Court, the order dated 05.09.2012, is nothing but a formal declaration of the fact that the application dated 31.01.1997 / 04.02.1997 stands rejected.

97. Rule 15 of the erstwhile Rules of 1986 used to contain a provision for transfer of entire mining lease and there was no provision for part transfer of the mining lease. A part transfer could be affected only if the State Government granted a relaxation by invoking its power under Rule 65 of the Rules of 1986. Simply because a relaxation had earlier been granted in the case of the petitioner and the mining leaseholder (Gotan Limestone Khanij Udhyog), relaxation cannot be claimed as a (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (34 of 35) [CW-404/2013] right. The State cannot be compelled to relax the Rules, particularly when it had already turned down such request way back on 27.01.1999 and such rejection remained unchallenged.

98. Apart from what has been noted above, there is yet another aspect, which cannot be lost sight of. It is to be noted that by way of order dated 16.12.2014 the State Government had determined the mining lease No. 45 of 1993, which was granted to the erstwhile partnership firm (Gotan Limestone Khanij Udhyog) and as of today, no mining lease exists in the name of said partnership firm or its successor (Private Limited Company).

99. Even the writ petition, which was filed by the Private Limited Company - successor of the lessee of the mining lease No. 45 of 1993 has been dismissed by this Court vide a separate order of even date. As the basic lease which was sought to be transferred now stands cancelled and challenge to said order has failed, the petitioner's agreement with the erstwhile lessee is, therefore, hit by the doctrine of frustration which stems from section 56 of the Indian Contract Act, 1872.

100. This Court would like to add that the said application was filed way back on 31.01.1997 and much water has flown down the river under the bridge. After 27 years of the application which stood rejected way back on 27.01.1999, neither the petitioner nor the lessee or the successor can be given any relief, when the entire procedure for grant of mineral rights have underwent a change.

101. Moreso, the Rules of 1986 have since been repealed on the promulgation of the Rajasthan Minor Mineral Concession Rules, (Downloaded on 05/11/2024 at 09:47:15 PM) [2024:RJ-JD:41786] (35 of 35) [CW-404/2013] 2017 (hereinafter referred to as the Rules of 2017). And by virtue of rule 5 and 6 of the Rules of 2017, rights of only those applicants have been saved to whom the competent authority had issued letter of intent before the commencement of Mines and Minerals (Development and Regulation) Act, 2015 and in case of minor minerals, where mining lease had been sanctioned prior to 01.03.2017 - the date when the Rules of 2017 came into force.

102. Viewed from any angle, the petitioner has no case worth interference. The writ petition is, therefore, dismissed.

103. Stay application and all interlocutory applications stand disposed of, accordingly.

104. Petitioner's application for deletion of name of respondent no.4 to 9 shall be construed to be rejected, as these respondents are erstwhile partners of the firm, which was having leasehold rights. This case could not have been decided behind their back, because the firm had moved the application for part transfer of land of mining lease.

(DINESH MEHTA),J 499-Mak/-

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Rajasthan High Court - Jodhpur