Rajasthan High Court - Jodhpur
Vinod Lalchand Lalwani vs State & Ors on 2 August, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15337 / 2016
M/s. Krishna Marble, 19-C, Old Fatehpura, Udaipur-313001 (raj.)
Through Its Authorised Signatory Gaurav Raj Prajapat, S/o Shri
Laxmi Lal Prajapat, Aged About 25 Years, R/o Village-kavita, Post-
thoor, Tehsil-badgoan, District-udaipur
----Petitioner
Versus
1. The State of Rajasthan, Through the Principal Secretary,
Department of Mines & Geology, Government of Rajasthan,
Secretariat, Jaipur
2. Director, Department of Mines & Geology, Government of
Rajasthan, Udaipur
3. Mining Engineer, Department of Mines and Geology, Sirohi
4. The Union of India Through the Secretary, Ministry of Mines,
New Delhi
----Respondents
Connected With
(1) S.B. Civil Writ Petition No. 1377 / 2016
Himmat Singh son of Shri Jai Singh Gehlot, a citizen of India, aged
about 41 years, resident of Baori Chainpura, Magra Poonjla,
Mandore, Jodhpur (Raj.)-342001
----Petitioner
Versus
1. The State of Rajasthan, Through the Chief Secretary,
Secretariat, Jaipur (Rajasthan)-302001
2. The Principal Secretary to the Govt., Govt. of Rajasthan, Mines
(Group-2) Department, Secretariat, Jaipur. (Rajasthan)-302001
3. The Director, The Directorate of Mines & Geology, Khanij
Bhawan, Shastri Circle, Udaipur-313001 (Rajasthan)
4. The Mining Engineer, Department of Mines and Geology,
Government of Rajasthan, Sojat City (Distt. Pali)
----Respondents
(2) S.B. Civil Writ Petition No. 1526 / 2016
Dover Natural Resources Pvt. Ltd., through its Authorized
Representative & Power of Attorney Holder, Vinay Kumbhat son of
Shri Jaswant Mal Kumbhat, aged about 39 years, 1 floor, 55
Padmavati Complex, Near Mahapragya Vihar, Bhuwana, Udaipur-
313001.
(2 of 24)
[ CW-15337/2016]
----Petitioner
Versus
1. State of Rajasthan through the Principal Secretary, Mines
Department Government of Rajasthan, Secretariat, Jaipur.
2. The Joint Secretary (Mines), Mines Department, Government of
Rajasthan, Secretariat, Jaipur.
3. The Director, Mines & Geology Department, Directorate, Khanij
Bhawan, Shahstri Circle, Udaipur.
4. The Mining Engineer, Mines & Geology Department, Khanij
Bhawan, Rajsamand-II, District Rajsamand.
----Respondents
(3) S.B. Civil Writ Petition No. 2189 / 2016
Saurabh Nepaliya S/o Shri Roshan Lal Mathur aged 43 years
resident of 03, Sethji Bari, Madhuvan, Udaipur (Rajasthan).
----Petitioner
Versus
1. The State of Rajasthan through the Principal Secretary to the
Government of Rajasthan, Mines Department, Jaipur.
2. The Joint Secretary, Mines Department, Rajasthan Secretariat,
Jaipur.
3. The Additional Director (Mines), Mines and Geology
Department, Udaipur Zone, Udaipur.
4. The Mining Engineer, Mines and Geology Department, Udaipur
Division, Udaipur.
----Respondents
(4) S.B. Civil Writ Petition No. 2190 / 2016
Harish Soni S/o Shri Sunder Lal, aged 58 years, resident of
Kankroli Tehsil and District Rajsamand. (Rajasthan).
----Petitioner
Versus
1. The State of Rajasthan through the Principal Secretary to the
Government of Rajasthan, Mines Department, Jaipur.
2. The Joint Secretary, Mines Department, Rajasthan Secretariat,
Jaipur.
(3 of 24)
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3. The Additional Director (Mines), Mines and Geology
Department, Udaipur Zone, Udaipur.
4. The Assistant Mining Engineer, Mines and Geology Department,
Nimbahera, district Chittorgarh.
----Respondents
(5) S.B. Civil Writ Petition No. 2192 / 2016
Bhanwar Singh Deora S/o Shri Kan Singh aged 36 years resident
of 51, Deoron ka Khera, Post Morwal Tehsil Gogunda District
Udaipur (Rajasthan).
----Petitioner
Versus
1. The State of Rajasthan through the Principal Secretary to the
Government of Rajasthan, Mines Department, Jaipur.
2. The Joint Secretary, Mines Department, Rajasthan Secretariat,
Jaipur.
3. The Additional Director (Mines), Mines and Geology
Department, Udaipur Zone, Udaipur.
4. The Mining Engineer, Mines and Geology Department, Udaipur
Division, Udaipur.
----Respondents
(6) S.B. Civil Writ Petition No. 6564 / 2016
Rajendra Khatri S/o Shri Jethmal Khatri, aged around 41 years,
R/o Kamal Niwas, Near Arvind Pathology Lab, Old Gajner Road,
Bikaner.
----Petitioner
Versus
1. The State of Rajasthan through Secretary, Department of Mines
and Geology, Government of Rajasthan, Secretariat, Jaipur.
2. The Director, Directorate of Mine and Geology, Government of
Rajasthan Khanij Bhawan, Udaipur.
3. The Additional Director (Mines), Department of Mines and
Geology, Jodhpur Zone, Government of Rajasthan, Jodhpur.
4. Superintending Mining Engineer, Bikaner.
5. Mining Engineer, Jaisalmer.
----Respondents
(4 of 24)
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(7) S.B. Civil Writ Petition No. 8181 / 2016
Ishwar Singh S/o Shri Magan Singh aged 56 R/o Village Jyani
Tehsil Jayal District Nagour (Raj.)
----Petitioner
Versus
1. State of Rajasthan through Principal Secretary to the
Government, Mines Department Government Secretariat, Jaipur.
2. The Joint Secretary (Group-II), Mines Department, Government
of Rajasthan Jaipur (Raj.).
3. The Director Mines and Geology, Department, Khanij Bhawan,
Udaipur.
4. The Mining Engineer, Mines & Geology Department, Jaisalmer.
----Respondents
(8) S.B. Civil Writ Petition No. 9191 / 2016
Pratap Singh Shekhawat S/o Shri Narpat Singh Shekhawat aged
48 R/o 205, Tenk Complex, Fatehpura, Udaipur (Raj.).
----Petitioner
Versus
1. State of Rajasthan through Principal Secretary to Government,
Mines Department, Government Secretariat, Jaipur.
2. The Joint Secretary (Group-II), Mines Department, Government
of Rajasthan Jaipur (Raj.).
3. The Director, Mines and Geology, Department, Khanij Bhawan,
Udaipur.
4. The Mining Engineer, Mines & Geology Department, Jalore.
----Respondents
(9) S.B. Civil Writ Petition No. 9192 / 2016
Pratap Singh Shekhawat S/o Shri Narpat Singh Shekhawat aged
48 R/o 205, Tenk Complex, Fatehpura, Udaipur (Raj.).
----Petitioner
Versus
1. State of Rajasthan through Principal Secretary to Government,
Mines Department, Government Secretariat, Jaipur.
(5 of 24)
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2. The Joint Secretary (Group-II), Mines Department, Government
of Rajasthan Jaipur (Raj.).
3. The Director, Mines and Geology, Department, Khanij Bhawan,
Udaipur.
4. The Mining Engineer, Mines & Geology Department, Jalore.
----Respondents
(10) S.B. Civil Writ Petition No. 15338 / 2016
Geetanjali Marble 19-C, Old Fatehpura, Udaipur-313001 (Raj.)
through its authorised signatory Gaurav Raj Prajapat, son of Shri
Laxmi Lal Prajapat, aged about 25 years, resident of Village
Kavita, Post Thoor, Tehsil Badgoan, District Udaipur.
----Petitioner
Versus
1. The State of Rajasthan through the Principal Secretary,
Department of Mines & Geology, Government of Rajasthan
Secretariat, Jaipur.
2. Director, Department of Mines & Geology, Government of
Rajasthan, Udaipur.
3. Mining Engineer, Department of Mines and Geology, Sojat City,
District Pali.
4. The Union of India through the Secretary, Ministry of Mines,
New Delhi.
----Respondents
(11) S.B. Civil Writ Petition No. 15339 / 2016
Ravi Real Mart Pvt. Ltd., 19-C, Old Fatehpura, Udaipur-313001
(raj.) Through Its Authorised Signatory Gaurav Raj Prajapat, S/o
Shri Laxmi Lal Prajapat, Aged About 25 Years, R/o Village-kavita,
Post-thoor, Tehsil-badgoan, District-udaipur
----Petitioner
Versus
1. The State of Rajasthan, Through the Principal Secretary,
Department of Mines & Geology, Government of Rajasthan,
Secretariat, Jaipur
2. Director, Department of Mines & Geology, Government of
Rajasthan, Udaipur
3. Mining Engineer, Department of Mines and Geology, Sirohi
(6 of 24)
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4. The Union of India Through the Secretary, Ministry of Mines,
New Delhi
----Respondents
(12) S.B. Civil Writ Petition No. 15340 / 2016
Rahul Marbles Pvt. Ltd., Brahmano Ka Guda Road, Village Gedla,
Tehsil Girwa, Udaipur-313001 (raj.) Through Its Authorised
Signatory Gaurav Raj Prajapat, S/o Shri Laxmi Lal Prajapat, Aged
About 25 Years, R/o Village-kavita, Post-thoor, Tehsil-badgoan,
District-udaipur
----Petitioner
Versus
1. The State of Rajasthan, Through the Principal Secretary,
Department of Mines & Geology, Government of Rajasthan,
Secretariat, Jaipur
2. Director, Department of Mines & Geology, Government of
Rajasthan, Udaipur
3. Mining Engineer, Department of Mines and Geology, Sirohi
4. The Union of India Through the Secretary, Ministry of Mines,
New Delhi
----Respondents
(13) S.B. Civil Writ Petition No. 15341 / 2016
Trinity Inforpark Pvt., Ltd., Flat No. 302, Vinayak Apartment, Near
St. Mary School, New Fatehpura, Udaipur- 313001 (Raj.) Through
Its Authorised Signatory Gaurav Raj Prajapat, Son of Shri Laxmi
Lal Prajapat, Aged About 25 Years, Resident of Village Kavita, Post
Thoor, Tehsil Badgoan, District Udaipur
----Petitioner
Versus
1. The State of Rajasthan, Through the Principal Secretary,
Department of Mines & Geology, Government of Rajasthan,
Secretariat, Jaipur
2. Director, Department of Mines & Geology, Government of
Rajasthan, Udaipur
3. Mining Engineer, Department of Mines and Geology, Sojat City,
District Pali
4. The Union of India Through the Secretary, Ministry of Mines,
New Delhi
(7 of 24)
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----Respondents
(14) S.B. Civil Writ Petition No. 1495 / 2017
Nirma Limited Having Its Registered Office At Nirma House,
Ashram Road, Ahmedabad, Through Its Latter of Attorney Holder
Shri Parixit Khiiriya S/o Kailashadan Khiriya, Aged 37 Years,
Presently Posted As Officer Legal, Nirma Ltd., Village Sinla, Tehsil-
Jaitaran, District- Pali.
----Petitioner
Versus
1. The State of Rajasthan Through the Principal Secretary to the
Government of Rajasthan, Mines, Department, Jaipur.
2. The Joint Secretary, Mines Department, Rajasthan Secretariat,
Jaipur
3. The Additional Director (Mines), Mines and Geology
Department, Udaipur Zone, Udaipur
4. The Mining Engineer, Mines and Geology Department, Udaipur
Division, Udaipur
----Respondents
(15) S.B. Civil Writ Petition No. 9189 / 2016
Lokendra Singh S/o Shri Umrav Singh aged 37 R/o Ganpati Nagar,
Bohra Ganpati Road, District Udaipur (Rajasthan).
----Petitioner
Versus
1. State of Rajasthan, Through Principal Secretary to Government,
Mines Department, Government Secretariat, Jaipur
2. The Joint Secretary (Group-II), Mines Department, Government
of Rajasthan, Jaipur (Raj.).
3. The Director, Mines and Geology Department, Khanij Bhawan,
Udaipur.
4. The Mining Engineer, Mines and Geology Department, Jalore.
----Respondents
(16) S.B. Civil Writ Petition No. 3685 / 2016
M/s Jainil Mines and Minerals, Registered Partnership Firm having
its Registered Office at 234, I Floor, Lohia Bazar, Panch Batti, Ekta
Circle, Beawar, District Ajmer through its Partner, Jagdish Prasad
(8 of 24)
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Soliwal Soliwal S/o Shri Nand Lal Ji, aged about 55 years, resident
of Nand Bhawan, Teja Chowk Beaware
----Petitioner
Versus
1. State of Rajasthan, Through Principal Secretary to Government,
Mines Department, Government Secretariat, Jaipur
2. The Director, Mines and Geology Department, Khanij Bhawan,
Udaipur.
3. The Mining Engineer, Mines and Geology Department, Sojat
City.
----Respondents
(17) S.B. Civil Writ Petition No. 9190 / 2016
Arjun Singh Champawat S/o Shri Manohar Singh aged 46 R/o 27-
A, Ganpati Nagar, Bohra Ganpati Road District Udaipur (Raj.).
----Petitioner
Versus
1. State of Rajasthan, Through Principal Secretary to Government,
Mines Department, Government Secretariat, Jaipur
2. The Joint Secretary (Group-II), Mines Department, Government
of Rajasthan, Jaipur.
3. The Director, Mines and Geology Department, Khanij Bhawan,
Udaipur.
4. The Mining Engineer, Mines & Geology Department, Jalore.
----Respondents
(18) S.B. Civil Writ Petition No. 9193 / 2016
Shyam Veer Singh Chundawat S/o Shri Madan Singhji Chundawat
aged 57 R/o Village Serara Tehsil Hurda District Bhilwara (Raj.).
----Petitioner
Versus
1. State of Rajasthan, Through Principal Secretary to Government,
Mines Department, Government Secretariat, Jaipur
2. The Joint Secretary (Group-II), Mines Department, Government
of Rajasthan, Jaipur.
(9 of 24)
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3. The Director, Mines and Geology Department, Khanij Bhawan,
Udaipur.
4. The Mining Engineer, Mines and Geology Department, Jalore.
----Respondents
(19) S.B. Civil Writ Petition No. 10563 / 2016
Vinod Lalchand Lalwani S/o Shri Shri Lal Chand Lalwani aged 35,
R/o Plot No.214/2, Ward No.7/D, Gandhi Dham, Kutch, Gujrat.
----Petitioner
Versus
1. State of Rajasthan, Through Principal Secretary to Government,
Mines Department, Government Secretariat, Jaipur
2. The Joint Secretary (Group-II), Mines Department, Government
of Rajasthan, Jaipur.
3. The Director, Mines and Geology Department, Khanij Bhawan,
Udaipur.
4. The Mining Engineer, Mines and Geology Department, Jaisalmer.
----Respondents
(20) S.B. Civil Writ Petition No. 2187 / 2016
Sanjay Kumar Singh S/o Shri Hare Ram Singh by caste Rajput,
aged 45 years resident of 11-C, Old Fatehpura, Udaipur
(Rajasthan).
----Petitioner
Versus
1. The State of Rajasthan, Through the Principal Secretary to the
Government of Rajasthan, Mines Department, Jaipur
2. The Joint Secretary, Mines Department, Rajasthan Secretariat,
Jaipur.
3. The Additional Director (Mines), Mines and Geology
Department, Udaipur Zone, Udaipur.
4. The Mining Engineer, Mines and Geology Department, Udaipur
Division, Udaipur.
----Respondents
(10 of 24)
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_____________________________________________________
For Petitioner(s) : Mr. M.S. Singhvi Sr. Advocate assisted by
Mr. Akhilesh Rajpurohit, Mr. Yogendra Singh,
Mr. Sunil Beniwal, Mr. D.D. Thanvi, Mr.
Arvind Shrimali, Mr. Anjay Kothari, Mr.
Pankaj Sharma & Mr. B.M. Bohra
For Respondent(s) : Mr. Rajesh Panwar, Addl. Advocate General
assisted by Mr. Parvej.
Mr. D.P. Dhaka for Mr. A.K. Rajvanshy, ASG
for Union of India
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Order 2nd /08/2017 All the abovementioned writ petitions shall stand decided by this common order as the issue involved is identical.
For convenience, the facts are being taken from SB Civil Writ Petition No.15337/2016 (M/s. Krishna Marble Vs. The State of Rajasthan & Ors.).
The petitioner applied to the Mining Engineer, Sirohi for grant of a prospecting license under Rule 9(1) of the Mineral Concession Rules, 1960 (hereinafter referred to as "the Act of 1960") for an area measuring 323.6649 hectares for mineral Lime Stone (Cement Grade) near village Amli, Tehsil Pindwara, District Sirohi (Rajasthan) along with the requisite fees, affidavits and other documents on 25.12.2014. The prospecting license was accordingly issued in favour of the petitioner as per the prevailing Mining Rules and Laws. The petitioner was directed vide order dated 09.01.2015 to complete all formalities for the execution of Statutory Contract within 45 days from the date of said order. The (11 of 24) [ CW-15337/2016] petitioner in compliance of the said order, deposited the security amount and Keenness Money to the tune of Rs.3,24,00,000/- in the form of Bank Guarantee and Prospecting Fee for 03 years in advance. After fulfillment of all the mandatory conditions by the petitioner, the Government of Rajasthan executed the Statutory Contract on prescribed stamp duty. The prospecting license was valid for a period of three years. The petitioner commenced the prospecting work as per terms of the license. Meanwhile, a general decision was taken to cancel all the prospecting licenses granted between the period 01.11.2014 to 12.01.2015 and to their utter surprise, the petitioner and many other similarly situated were informed through the official website of Department of Mines, Government of Rajasthan that the State Government had directed the Director of Mines and Geology to issue necessary order cancelling the prospecting license granted in their favour. Immediately thereafter, the State Government issued the impugned order dated 17.10.2015 of cancellation without issuing show cause notice or specifying breach or violation of any term of prospecting license.
Thereafter, the State Government proceeded to request the Central Government vide letter dated 27.11.2015 for permission/approval for premature termination of the prosecuting licenses granted to the petitioner and others under Section 4A(1) of the Act of 1957. Meanwhile, the petitioner and others had already filed their representation to the Central Government praying that the order dated 17.10.2015 be quashed or (12 of 24) [ CW-15337/2016] withdrawn. The Central Government in no uncertain terms directed the State Government vide communication dated 18.02.2016 to grant opportunity of hearing to the prospecting licenses holders whose licenses had been cancelled and recommend only individual cases to the Central Government after giving reasons for terminating the prospecting license in terms of Section 4A of the Act of 1957. It was only then that the State Government issued communication dated 03.03.2016 to the petitioner to show cause as to why the prospecting license granted should not be prematurely terminated. The petitioner filed a detailed reply to the said show cause notice dated 03.03.2016 but it was only as late as on 29.07.2016 that the petitioner was given necessary information and that too through the Right To Information Act that the State Government has already written to the Central Government once again on 13.05.2016 vide Annexure 11 to grant approval to the premature termination of the prospecting license. The petitioner immediately challenged the same through a revision petition before the Central Government. Instead of filing written statement before the Revisional Authority, the State Government hurriedly passed the order dated 30.11.2016 declaring the prospecting license of the petitioner as null and void in terms of Section 19 of the Act of 1957. A perusal of the order dated 30.11.2016 shows that the Central Government had issued an order dated 24.08.2016 whereby the Central Government held that the State Government is competent to declare the prospecting license as null and void in terms of Section (13 of 24) [ CW-15337/2016] 19 read with Section 4(2) of the Act of 1957 subject to an opportunity of personal hearing and passing of reasoned order. However, no personal hearing was provided.
The present writ petitions have, therefore, been filed for setting aside the earlier order dated 17.10.2015, the communication dated 13.05.2016 whereby the State Government sought approval for premature termination of the prospecting license as well as the order dated 30.11.2016 cancelling the licenses along with the prayer for quashing the order dated 24.08.2016 passed by the Central Government granting approval.
Reply has been filed.
While raising the preliminary objection of alternative remedy, learned Additional Advocate General for State submitted that the petitioner has an alternative remedy of filing a revision petition under Section 30 of the Mines & Minerals (Development & Regulations) Act, 1957 and some of the petitioners having already availed the same by filing the revision petition. Hence, the writ petition was not maintainable. It was further submitted that the State Government has established that all these prospecting licenses were granted while by-passing the procedure laid down for processing of mineral concession application and without following the directions given in guidelines dated 30.10.2014 issued by the Ministry of Mines and that the State Government is empowered to reject the grant of any prospecting license/mining lease application or their renewal under Section 4A(2) of the Mines and Minerals (Development and Regulation) Act, 1957 which (14 of 24) [ CW-15337/2016] empowers the State Government or competent authority to terminate the prospecting licenses or mining leases. Further, as per the Review Committee, 19000 applications are pending till date but only 3.88% of these applications were decided between 01.11.2014 to 12.01.2015. These applications have been decided on preference basis without considering the date on which they were submitted. Accordingly, the Governor of Rajasthan recommended to the Lokayukt, Rajasthan to conduct an enquiry in the matter pertaining to the entire allotment process and grant of LOIs and sanction of prospecting licenses by Mines Department and offices subordinate to it between the period 01.11.2014 to 12.01.2015 and it was only thereafter, the State Government had directed vide letter dated 17.10.2015 to the Director, Mines and Geology Department to cancel the 548 LOIs and 53 other licenses issued between 01.11.2014 to 12.01.2015. Further, the Central Government had issued guidelines on 30.10.2014. The said guidelines were received by the State Government on 31.10.2014. Hence, the State Government had selected the date for cancellation of prospecting licenses as 01.11.2014 i.e. the next day of the recent communication of the guidelines to the date of amendment of the Act of 1957 i.e. 12.01.2015. Hence, the recalling of prospecting licenses between 01.11.2014 to 12.01.2015 is as per the law.
Heard.
Taking up the preliminary objection of "alternative remedy"
available by way of filing a revision petition under Section 30 of (15 of 24) [ CW-15337/2016] the Mines & Minerals (Development & Regulations) Act, 1957 before the revisional authority, it may be noticed that the said power of revision lies with the Central Government against the order made by the State Government. Section 30 of the Mines & Minerals (Development & Regulations) Act, 1957 reads as under:
"Section 30: Power of revision of Central Government.
The Central Government may, of its own motion or on application made within the prescribed time by an aggrieved party, revise any order made by a State Government or other authority in exercise of the powers conferred on it by or under this Act with respect to any mineral other than a minor mineral. In the present case, the approval for terminating the prospecting license has been granted by the Central Government itself vide impugned order dated 24.08.2016 (Annexure 14). The said provision does not provide any revision against an approval granted by the Central Government. Hence, even the argument that some of the petitioners have already filed the revision petition does not help. Moreover, the said revision petitions have been filed prior to the passing of the order dated 30.11.2016 vide which the prospecting licenses have been cancelled on the basis of the approval granted by the Central Government vide order dated 24.08.2016. Neither the order dated 24.08.2016 which is the approval given by the Central Government or the order dated
13.05.2016 is a subject matter of challenge in the said revision. In any case, it is a well settled proposition of law that availability of alternative remedy is no bar to the exercising of writ jurisdiction (16 of 24) [ CW-15337/2016] in appropriate cases as also held by the Apex Court in the case of State of Tripura Vs. Manoranjan Chakraborty & Ors. Reported in (2001) 10 SCC 740.
Thus, in the facts of the present case as discussed above, Section 30 of the Mines & Minerals (Development & Regulations) Act, 1957 does not come in the way of the petitioner to challenge the impugned orders by way of the present writ petition. Under the circumstances, this Court has no inhibition in entertaining the writ petition being maintainable.
On merits, Section 4A of the Mines & Minerals (Development & Regulations) Act, 1957 deals with the premature termination of a prospecting license and mining lease in respect of any mineral other than a minor mineral. Section 4A of the Act of 1957 reads as under:
Section 4A. Termination of prospecting licences or mining leases.
(1) Where the Central Government, after consultation with the State Government is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution, or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for conservation of mineral resources or for maintaining safety in the mines or for such other purposes, as the Central Government may deem fit, it may request the State Government to make a premature termination of a prospecting licence or mining lease in respect of any mineral other than a minor mineral in any area or part thereof, and, on receipt of such request, the State Government shall make an order making a premature termination of such prospecting licence or mining lease with respect to the area or any part thereof.
(17 of 24) [ CW-15337/2016] (2) Where the State Government is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution, or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for such other purposes, as the State Government may deem fit, it may, by an order, in respect of any minor mineral, make premature termination of prospecting licence or mining lease with respect to the area or any part thereof covered by such licence or lease.
(3) No order making a premature termination of a prospecting licence or mining lease shall be, made except after giving the holder of the licence or lease a reasonable opportunity of being heard.
(4) Where the holder of a mining lease fails to undertake mining operations for a period of two years after the date of execution of the lease or having commenced mining operations, has discontinued the same for a period of two years, the lease shall lapse on the expiry of the period of two years from the date of execution of the lease or, as the case may be, discontinuance of the mining operations: Provided that the State Government may, on an application made by the holder of such lease before its expiry under this sub-section and on being satisfied that it will not be possible for the holder of the lease to undertake mining operations or to continue such operations for reasons beyond his control, make an order, subject to such conditions as may be prescribed, to the effect that such lease shall not lapse: Provided further that the State Government, may on an application by the holder of a lease submitted within a period of six months from the date of its lapse and on being satisfied that such non commencement or discontinuance was due to reasons beyond the control of the holder of the lease, revive the lease from such prospecting or retrospective date as it thinks fit but not earlier than the date of lapse of the lease:
Provided also that no lease shall be revived under the second proviso for more than twice during the entire period of the lease.
It is evident from the provisions of Section 4 of the Act of 1957 as above that the prospecting license and mining lease can (18 of 24) [ CW-15337/2016] be cancelled prematurely only in the cases viz. in the interest of regulation of mines and mineral development; preservation of natural environment; control of floods; prevention of pollution; to avoid danger to public health; or communications, or to ensure safety of buildings, monuments or other structures, or for convenience of mineral resources, or for maintaining safety in the mines or for such other purposes as the Central Government may deem fit but none of the grounds for such an action are made out from the impugned order. The impugned order dated 30.11.2016 is a non-speaking order. No specific violation has been mentioned in the said order. In fact, a general decision seems to have been taken for all the prospecting licenses granted between 01.11.2014 to 12.01.2015 but no reason for even arriving at a general decision of such mass cancellation of licenses is forthcoming. Even as per the Statutory Contract, the State Government can cancel the prospecting license only if there is a breach of contract. No such notice stating any breach of contract has been stated.
Besides, sub-Section 3 of Section 4A of the Act of 1957 as reproduced above provides that no order of premature termination of a prospecting license can be passed without giving the holder of the licensee a reasonable opportunity of being heard. No hearing was provided. Even the Central Government vide its order dated 24.08.2016 directed the State Government to pass an appropriate order subject to the grant of an opportunity of hearing to each individual. Admittedly, even then, no hearing was granted.
Hence, the very order is not only a breach of of Section 4A of the (19 of 24) [ CW-15337/2016] Act of 1957 but a violation of the order dated 24.08.2016 issued by the Central Government with a direction, which reads as under:
"The State Government is fully competent to take action in terms of Section 19 of the Act read with Section 4(2) at their level. However, State Government must "pass speaking" order after giving opportunity of hearing."
Thus, the writ petition deserves to be allowed on this ground alone.
The argument of the respondents that the matter has been referred to the Lokayukta for enquiry vide order dated 17.10.2015 passed by the Hon'ble Governor of State of Rajasthan rather shows that the respondent State passed the order of premature termination in a hurry and without awaiting the finalization of the enquiry. However, failure to do so has resulted not only in cancellation of their prospecting licenses but shall further deprive them of their right granted/provided under Section 10A of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 to apply for Mining/Prospecting License in the next term.
Section 10A of the Amended Act, 2015 reads as under:
"10A. (1) All applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall become ineligible.
(2) Without prejudice to sub-section (1), the following shall remain eligible on and from the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015:
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(a) applications received under section 11A of this Act;
(b) where before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 a reconnaissance permit or prospecting licence has been granted in respect of any land for any mineral, the permit holder or the licensee shall have a right for obtaining a prospecting licence followed by a mining lease, or a mining lease, as the case may be, in respect of that mineral in that land, if the State Government is satisfied that the permit holder or the licensee, as the case may be,--
(i) has undertaken reconnaissance operations or prospecting operations, as the case may be, to establish the existence of mineral contents in such land in accordance with such parameters as may be prescribed by the Central Government;
(ii) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;
(iii) has not become ineligible under the provisions of this Act; and
(iv) has not failed to apply for grant of prospecting licence or mining lease, as the case may be, within a period of three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period not exceeding six months as may be extended by the State Government;
(c) where the Central Government has communicated previous approval as required under sub-section (1) of section 5 for grant of a mining lease, or if a letter of intent (by whatever name called) has been issued by the State Government to grant a mining lease, before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, the mining lease shall be granted subject to fulfilment of the conditions of the previous approval or of the letter of intent within a period of two years from the date of commencement of the said Act:
(21 of 24) [ CW-15337/2016] While meeting the argument of the petitioners that there is no mention in the order as to why the particular date 01.11.2014 to 12.01.2015 has been picked up for cancellation, a vague explanation for choosing the date has been given in their reply. As per the reply, the date 01.11.2014 is the next day of the receipt of the guidelines on 31.10.2014. The said choice of the date is without reason, arbitrary and without application of mind on the face of it.
The argument that the show cause notice was issued and reply was invited and considered before cancellation cannot be sustained. A perusal of the impugned order shows that there was no application of mind . Identical orders have been passed qua all the petitioners. There is no individual reference. None of the objections have been considered. The orders are all cyclostyled. A total non-speaking order has been passed without following the principles of natural justice, without complying with the provision of Section 4A of the Act of 1957 and/or the order of the Central Government dated 24.08.2016 directing to give personal hearing before passing of any order to each individual. Each case was required to be dealt separately. Thus, issuance of show cause notice is a total eye wash. The impugned orders, therefore, cannot be sustained.
The Apex Court in the case of Onkar Lal Bajaj & Ors. Vs. Union of India & Anr. reported in (2003) 2 SCC - 673 in the circumstances wherein number of writ petitions were filed in various High Courts challenging the legality of the order vide (22 of 24) [ CW-15337/2016] which the Letters of Intents granting LPG dealership were cancelled en masse on the ground of various illegalities having been committed in the allotments and holding the selections as tainted, were quashed by the Apex Court by observing as under:
43. The mere reason that a 'controversy' has been raised by itself cannot clothe the Government with the power to pass such a drastic order which has a devastating effect on a large number of people. In governance, controversies are bound to arise. In a given situation, depending upon facts and figures, it may be legally permissible to resort to such en masse cancellation where executive finds that prima facie a large number of such selections were tainted and segregation of good and bad would be difficult and time consuming affair. That is, however, not the case.
Here the controversy raised was in respect of 5 to 10%, as earlier indicated. In such a situation, en masse cancellation would be unjustified and arbitrary. It seems that the impugned order was a result of panic reaction of the Government. No facts and figures were gone into. Without application of mind to any of relevant consideration, a decision was taken to cancel all allotments. The impugned action is clearly against fair play in action. It cannot be held to be reasonable. It is nothing but arbitrary.
44. Regarding the probity in governance, fair play in action and larger public interest, except contending that as a result of media exposure, the Government in public interest decided to cancel all allotments, nothing tangible was brought to our notice. On 5th August, 2002 only reason was that 'a controversy' had been raised. In order dated 9th August, 2002 the reasons given are that facts and circumstances considered and to ensure fair play in action and in public interest, it was passed. In counter affidavit, the aspect of probity in governance has been brought in. Be that as it may, the fact remains that admittedly, no case was examined, not even from a prima facie angle to find out whether there was any substance in the media exposure. None examined the impact that was likely to result because of en masse cancellation. Many had resigned their jobs. It was necessary because of such a stipulation in LOI. Many had taken huge loans. There (23 of 24) [ CW-15337/2016] were many Schedule Casts/Schedule Tribes, war widows and those whose near relation had died as a result of terrorist activities. The effect of none was considered. How could all those large number against whom there was not even insinuation be clubbed with the handful of those who were said to have been allotted these dealerships/distributorships on account of political connection and patronage? The two were clearly unequals. The rotten apples cannot be equated with good apples. Under these circumstances, the plea of probity in governance or fair play in action motivating the impugned action cannot be accepted. The impugned order looked from any angle cannot stand the scrutiny of law."
Applying the test in the present case, it has already been observed above that the said orders have been passed without application of mind, without giving any opportunity of hearing and in violation of provisions of Section 4A (1) & (2) of the Act of 1957 as also the directions of the Central Government. The orders are non-speaking and cyclostyle orders. No reason for cancellation is forthcoming. The same has resulted not only in cancellation of their ongoing right but deprived them of their right to apply as per the protection given to them under Section 10A of the Amended Act.
In view of the above, the present writ petitions are allowed. The impugned orders vide which show cause notice was issued as well as the Prospecting License was cancelled as also the order of the Central Government granting approval are set aside. The respondents are at liberty to pass a fresh order in accordance with law after following principles of natural justice and examining each case separately and after providing a personal hearing by a duly (24 of 24) [ CW-15337/2016] constituted committee to be constituted by the Chief Secretary comprising of at least three senior official not below the rank of the Secretary of the State.
(NIRMALJIT KAUR), J.
Anil/