Rajasthan High Court - Jodhpur
Marwar Cement Limited vs State & Anr on 6 October, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S. B. Civil Writ Petition No. 1312 / 2014
Marwar Cement Limited, Jodhpur Tower, Ground Floor,
Dharamnarainji Ka Hatha, Paota, Jodhpur - 342 010 (Raj.)
----Petitioner
Versus
1. The State of Rajasthan through the Principal Secretary,
Department of Industries (Group-1), Government of
Rajasthan, Secretariat, Jaipur
2. The Principal Secretary, Department of Mines, Government of
Rajasthan, Secretariat, Jaipur
3. The Principal Secretary, Department of Revenue, Government
of Rajasthan, Secretariat, Jaipur
4. The District Collector, Jodhpur
----Respondents
Connected with
(2) S. B. Civil Writ Petition No. 10166 / 2013
Marwar Cement Limited, Jodhpur Tower, Ground Floor,
Dharamnarainji Ka Hatha, Paota, Jodhpur - 342 010 (Raj.)
----Petitioner
Versus
1. The State of Rajasthan through the Principal Secretary,
Department of Industries (Group-1), Government of
Rajasthan, Secretariat, Jaipur
2. The District Collector, Jodhpur
Reportable ----Respondents
_____________________________________________________
For Petitioner : Mr. M.S. Singhvi, Sr. Advocate assisted by
Mr. Akhilesh Rajpurohit
For Respondents : Mr. Rajesh Panwar, A.A.G. with Mr. Ayush
Gehlot
_____________________________________________________
(2 of 23)
[ CW-1312/2014]
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Order October 6th, 2017 Both the aforesaid writ petitions shall stand decided by this common order as the issue involved therein is identical.
The prayer in the Writ Petition No. 1312/2014 is for quashing of the decision taken in the minutes of the meeting dated 23.01.2014 with a further prayer to direct the respondents not to cancel the allotment of land in question made in favour of the petitioner vide Order dated 25.01.2012 with all consequential directions and the prayer in the Writ Petition No. 10166/2013 is for issuance of a direction to the respondent to execute the lease deed of the land in question allotted to the petitioner after giving effect to the orders passed by the High Court dated 09.05.2012 and also to handover possession of the land so covered by the lease deed with a further prayer to facilitate the setting up of the cement plant pursuant to the order of allotment of land with all consequential directions.
The petitioner applied for registration before the Ministry of Commerce and Industries on 17.02.2009 for setting up of a Cement Manufacturing Plant in the form of clinkers with proposed capacity of 1371000 metric ton. The petitioner prepared its project report for setting up of the Unit in December, 2009. In order to set up the cement plant, the petitioner purchased land measuring 53 bighas and 18 biswas situated at Village Ghodawat, (3 of 23) [ CW-1312/2014] Gram Panchayat Khawaspura, Tehsil Bhopalgarh, District Jodhpur in Khasra No. 343/12, 343/11, 343/10, 341, 340/1 and 340 from the private persons after negotiations. After purchasing the said land, the petitioner moved an application under the Rajasthan Land Revenue (Conversion of Agriculture Land for Non-agriculture Purposes) Rules, 2007 and the same was converted vide Order dated 18.02.2009. Some more land was purchased by the petitioner in the said village vide registered sale-deed. Thereafter, the petitioner moved an application for environment clearance before the Rajasthan Pollution Control Board. In pursuance to the said application, public notice was issued in the newspapers, namely, 'Hindustan Times' as well as 'Dainik Bhaskar' on 12.02.2009 for public hearing. The respondent authorities conducted the public hearing on 13.10.2009 in which as many as 92 persons participated. The minutes of the public hearing were drawn by the Regional Officer, Rajasthan State Pollution Control Board, Jodhpur and the same was forwarded to the Member Secretary, Rajasthan Pollution Control Board, Jodhpur on 28.01.2010. The Ministry of Environment and Forest granted environment clearance to the petitioner vide its Communication dated 27.07.2010. After complying with all the requirements for allotment of land, an application dated 31.05.2010 under the Rajasthan Land Revenue (Industrial Area Allotment) Rules, 1959 (for short 'Rules of 1959' hereinafter) was filed by the petitioner before the District Collector, Jodhpur for allotment of land measuring 167 acres in Khasra No. 343 of Village Ghodawat, (4 of 23) [ CW-1312/2014] Tehsil Bhopalgarh, District Jodhpur. The said application was processed by the Collector who sought the report from the Tehsildar, Bhopalgarh in the prescribed form vide its Communication dated 06.06.2010. A copy of the same was also sent to the Pollution Control Board and the Deputy Director (Industries), Jodhpur seeking no objection for allotment of the land to the petitioner. In response to the said communication dated 06.06.2010, the Tehsildar, Bhopalgarh submitted its report to the Collector, Jodhpur vide communication dated 12.08.2010. The Gram Panchayat Khawaspura, Panchayat Samiti Bhopalgarh, District Jodhpur also issued No Objection Certificate vide communication dated 20.11.2010 after proposal having been passed in the meeting of the Gram Panchayat held on 05.11.2010. The District industries Department too issued No Objection Certificate on 20.08.2010. Although, the petitioner had moved an application for allotment of 167.4 acres land but the Gram Panchayat granted No Objection for 151.4 acres land which is evident from the Communication dated 20.11.2010. After completion of the above formalities, the Collector, Jodhpur sought permission from the State Government for allotment of land to the petitioner vide its Letter dated 10.01.2011. The State Government sough recommendation of the Collector vide their Letter dated 17.02.2011, in pursuance to which, the Collector, Jodhpur once again conducted an enquiry and only thereafter, recommended the allotment of land in favour of the petitioner being fully satisfied. The State Government again sought clarifications from the (5 of 23) [ CW-1312/2014] Collector, Jodhpur vide their Communication dated 04.07.2011. The requisite information as required was submitted by the Collector on 11.08.2011. The State Government finally granted permission on 30.08.2011 for setting apart the land measuring 151.4 acres situated in Khasra No. 343 of Village Ghodawat, Tehsil Bhopalgarh in favour of the petitioner in terms of Section 92 of the Rajasthan Land Revenue Act, 1956 vide Annexure-16. In pursuance to the permission of the State Government dated 30.08.2011, the Collector, Jodhpur vide its Order dated 19.09.2011 earmarked the land in question in favour of the petitioner for establishing the cement plant, so much so, even the revenue entry was made in the Jamabandi in the name of the petitioner on 24.10.2011. An order of allotment of land measuring 151.4 acres for industrial purpose was issued on 25.01.2012. Meanwhile, two persons, namely, Pradeep Singh and Ganpat Ram filed writ petitions bearing S.B. Civil Writ Petition Nos. 542/2012 and 1567/2012, respectively, before the High Court challenging inter alia sanction order dated 30.08.2011 and order of setting apart the land dated 19.09.2011 in Writ Petition No. 542/2012 and sanction order dated 30.08.2011, order of setting apart the land dated 19.09.2011, allotment order dated 25.01.2012 and the revenue entries dated 05.01.2012 in Writ Petition No. 1567/2012, on the ground that part of the land allotted to the petitioner was included in the applications moved by the writ petitioners in that case for grant of mining lease. The High Court passed ex-parte interim orders on 10.02.2012 and (6 of 23) [ CW-1312/2014] 24.02.2012 in favour of the petitioners in the said writ petitions. The petitioner herein moved an application for vacation of ex- parte interim orders, upon which, the High Court modified the interim orders dated 10.02.2012 and 24.02.2012 on 09.05.2012 observing that the interim orders passed by the Court shall not preclude the State Government from taking the consequential action in pursuance to the allotment order issued in favour of the petitioner after excluding the land covered by the applications moved by the petitioners in the Writ Petition Nos. 542/2012 and 1567/2012. Thereafter, the Collector, Jodhpur sought opinion from the Additional Advocate General vide its Communication dated 21.06.2012 and also sought factual report from the Tehsildar, Bhopalgarh. The Tehsildar recommended for the allotment and the Additional Advocate General gave his opinion to the Collector, Jodhpur that he may proceed for taking consequential action pursuant to the allotment order in terms of the Order dated 09.05.2012 passed by the High Court. Despite the positive opinion given by the respective authorities and repeated efforts made by the petitioner, the Collector, Jodhpur did not take further steps in pursuance to the order passed by the State Government in favour of the petitioner for executing lease deed of the land in question which was set apart and allotted in favour of the petitioner. When nothing was done, the petitioner preferred the writ petition before the High Court bearing S.B. Civil Writ Petition No. 10166/2013 in which notices were issued to the respondents on 26.08.2013. In response to the notice, the (7 of 23) [ CW-1312/2014] respondents their filed reply to the writ petition on 28.10.2013. The above mentioned matter was argued for some time and thereafter, the counsel appearing for the State in that case gave an undertaking for execution of the lease deed keeping in view the Order dated 09.05.2012 passed by the High Court in S.B. Civil Writ Petition Nos. 542/2012 and 1567/2012 on 09.11.2013. After recording such an undertaking, the Court fixed the matter after six weeks. Despite the undertaking given by the counsel for the respondents in that case, the respondents did not execute the lease deed within the stipulated period of six weeks. However, on 10.02.2014, the respondents moved an application for modification/recalling of the Order dated 09.11.2013 on the purported ground that the officer-in-charge of the case viz. Tehsildar, Pipar City did not give any written undertaking to the counsel appearing for them. In this application, a reference was made to the minutes dated 23.01.2014 of the meeting held on 20.01.2014. Hence, the present writ petition was filed for setting aside impugned decision taken in the minutes of the meeting dated 23.01.2014.
With this background, learned counsel for the petitioner while praying for a direction to the respondents to grant the lease submitted that the petitioner had invested more than a sum of over Rs. 30,00,00,000/- for setting up a cement plant on the land in question. The High Court had already passed the Order dated 09.05.2012 on an undertaking given to this effect before the High Court. Hence, there was no occasion for the respondent to take (8 of 23) [ CW-1312/2014] the impugned decision. There was no material before the Government to change its decision. Only a lease-deed is required to be executed for which the High Court had already passed the orders. No prospecting or mining operation of the mineral on the land in question had taken place and therefore, it cannot be said that it is a mineral bearing land. In any case, there is no bar under the Rules of 1986 for its allotment for establishment of a cement plant and most of the cement plants have been established in the Rajasthan near the mining lease area and hence, the land on which the cement plants are established have mineral beneath it. The impugned decision has been taken only after coming into power of another political party forming Government after the general elections held in the month of December, 2013. The petitioner has invested huge amount under the legitimate expectations that the land in question will be handed over to the petitioner. There is no public interest in cancelling the allotment. In fact, huge revenue will be generated on account of the said plant of the petitioner. Further, the State Government had categorically defended allotment of the land to the company including the challenge on the ground of so-called availability of the mineral in their reply to the Writ Petition No. 542/2012. The said written statement was never amended or withdrawn. Hence, the respondents cannot be allowed to change their stand at this stage.
Reply has been filed. As per the reply and arguments of the learned counsel for the respondents, it was contended that (9 of 23) [ CW-1312/2014] according to the respondent - Mining Department, the land in question bears 22.5 million tons limestone worth Rs. 596.25 crores, and therefore, the State Government has taken the decision to cancel the allotment of the petitioner in the larger interest of the public so also looking to the pecuniary interests. Further, this fact came to their knowledge after the allotment of the land to the petitioner. The Mining Engineer informed vide its Communication dated 19.09.2012 that the Superintending Geologist, Jodhpur has intimated vide Letter dated 28.02.2012 that the land in question contains 22.5 million metric tons limestone. Thereafter, the opinion was sought from the Director of Mining Department, Udaipur who directed the District Collector, Jodhpur not to handover the possession till the opinion from the Mining Department was received and that they had filed an application for reviewing/recalling the Order dated 09.11.2013 passed in S.B. Civil Writ Petition No. 10166/2013 vide which an undertaking was given by the State Counsel. Further, no contract has been signed between the parties. No possession has been handed over and nor any amount has been paid by the petitioner and hence, the petitioner has no right to seek execution of the lease deed.
Learned counsel for the parties were heard at length. While raising the first main objection on behalf of the respondent - State that the petitioner has no right as no lease deed has been signed between the parties, learned counsel placed reliance on the judgments rendered in the case of State of (10 of 23) [ CW-1312/2014] Rajasthan Vs. Raghunath Singh reported in 1974 AIR (Raj.) 4 and Kirorilal Vs. State of Madhya Pradesh reported in 1977 AIR (Raj) 101 as well as Monnet Ispat and Energy Limited Vs. Union of India and others reported in (2012) 11 Supreme Court Cases 1 to contend that simply a decision to grant mining lease does not constitute a bar on the executive power of the State Government to recall its decision in the public interest.
There is no dispute with the proposition of law that no one has a legal or vested right for grant or renewal of a mining lease. The question is as to whether the exercise of such a power by the Executive to recall its decision can be challenged on the ground of malafide, dishonesty and arbitrariness.
The Apex Court in the case of Barium Chemicals Ltd. and another Vs. Company Law Board and others reported in AIR 1967 Supreme Court 295(1) held in no uncertain terms that the Court even in such situation may quash an order passed with a dishonest intention and held thus :-
"Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in (11 of 23) [ CW-1312/2014] forming it, it did not apply its mind to the relevant facts."
There is no doubt that the person who seeks to nullify an order on account of malafide must establish the charge. Such a charge should at least be established from the surrounding facts. The allegations of malafide demands proof of high order. Thus, this Court also requires to see as to whether the petitioner in the present case has been able to prove the malafide as alleged. The only malafide alleged in the present case is that no material existed with the State Government to have changed its decision which was taken earlier except for the coming into power of another political party forming Government after the general elections held in the month of December, 2013. The respondents, of course, have disputed the same by placing on record the documents Annexure-A/3, A/4 and A/5 along with their additional affidavit to show that the Superintending Geologist, Jodhpur had communicated the letter to the Mining Engineer, Mines and Geology Department, Jodhpur on 28.08.2012 regarding mineral availability in the land allotted to M/s Vedanta Industries in Khasra No. 343 of Village Ghodawat, District Jodhpur and the Superintending Geologist made a geological survey of the area in question and submitted its final report about assessment of high grade limestone around this village and that apart from the above, the Additional Director (Geology), Udaipur too had communicated the letter to the Secretary to the Government, Mines & Petroleum Department, Jaipur regarding allotment of land informing that the (12 of 23) [ CW-1312/2014] land indeed had 22.5 million ton limestone which is expected to be present but the exact figure can only be ascertained by drilling etc. However, a perusal of these documents show that there was no clarity with respect to the extent of the limestone and it was only on the basis of surface geological work and the reliance is placed on a report of the year 1996. The said report was already existing when allotment was made in favour of the petitioner and in any case, no effort had been made by the Government ever since to find out the existence of the exact amount of limestone by any exploration or drilling as is required to ascertain the same. In case, the stand of the Government is to be believed and the percentage of the existing limestone was reasonably good, it is not understood as to why it was never given away for mining till now and nor any such decision to give it for mining in the near future has been brought to the notice of this Court. In fact, the stand of the Government has always been that the land is not reserved for mining area. This is evident from the following :
a) Rule 73 of the Rules of 1986 provides for reservation of area for prospecting of mining operations by the Government. No such procedure as prescribed in Rule 73 ibid has been followed in respect of the land in question till date.
b) Reply was filed by the State in S.B. Civil Writ Petition No. 542/2012. In the said reply, it was admitted that the land was never a proposed mining area. Para 7 of (13 of 23) [ CW-1312/2014] the reply reads as under :-
"7. That the contents of para No. 7 of the writ petition are not admitted in the manner they are averred. Because the Geological Surveryer has surveyed the mining area and submitted list of the proposed mining area on the basis of survey to the Collector, and on the basis of which the respondent District Collector has issued Order dated 15.3.2003 directing the concerned revenue authorities to enter the proposed mining area in the revenue record, but the survey report so submitted by the Geologist does not find name of village Ghodawat, Tehsil Bhopalgarh, District Jodhpur as proposed mining area. Therefore, there is no question of recording the land in question proposed mining area in the revenue record. An exact and correct copy of the list of proposed mining area as recommended by the Geologist is submitted herewith and marked as Annexure-R/1/1."
The said reply has not been withdrawn till date. Thus, it is evident that there is definitely more to the decision of the respondent - State in taking a U-turn and not to give the land for setting up of the industrial unit than meets the eye. This view gets further strengthened from the perusal of the additional affidavit filed by the State after this Court vide Order dated 17.08.2017 directed the respondent - State to file an affidavit of an officer not less than rank of Secretary with respect to
(a) the date of the policy decision, (b) whether any other land containing mineral was allotted to any other company, firm or private person after 2011 and (2) whether the allotment of any such land was cancelled during this period from 2011 onwards for the same (14 of 23) [ CW-1312/2014] reason as of the petitioner or not and in compliance of the said order, the affidavit of Principal Secretary, Department of Mining & Geology, Rajasthan, Jaipur was filed placing on record the factual report with respect to the allotment of land containing minerals to the various companies, firms and private persons after 2011 for the purpose of setting up industrial unit. As per the said affidavit, in District Rajsamand, 03 such allotments were made, in District Jaisalmer, as many as 30 allotments have been made and no allotment of land/NOC was cancelled during this period for the reason that the land contains minerals.
Taking note of the above, this Court proceeds to test the decision of the Government with the standard of test laid down by the Apex Court in its various judgments.
The Apex Court in the case of Bhikhubhai Vithlabhai Patel and others Vs. State of Gujarat and another reported in (2008) 4 Supreme Court Cases 144 declared the decision of the State Government as ultra vires. In the said case, the appellants were deprived of their right to use the land for residential purposes for over a period of more than a quarter century. The authority included the land in the residential zone but the State Government reserved the land for the purpose of South Gujarat University. Hence, the land was de-reserved. The move of the State Government to designate the land for the educational use was declared ultra vires and void and the (15 of 23) [ CW-1312/2014] controversy was put to an end by enabling the appellants to utilise the land for residential purposes. The move of the State was set aside by holding that the Government had formed an opinion without applying its mind to the aspect of necessity and without forming an honest opinion on the question. While setting aside the action of the Government, the basic principle laid down in the Administrative Law (9th Edn.) by Prof. Sir Willian Wade was referred as under :-
"The basic principles in this regard are clearly expressed and explained by Prof. Sir William Wade in Administrative Law (9th Edn.) in the chapter entitled "Abuse of discretion" and under the general heading "the principle of reasonableness" which read as under :-
"The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act.
The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependents, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an (16 of 23) [ CW-1312/2014] absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.
There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed."
33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute."
Thus, the opinion or decision of the Government should be based on material available with it and cannot be allowed to change on irrelevant considerations and without application of mind. Hence, as per the ratio of the said judgment, the decision based on irrelevant consideration can always be examined by the Court.
In the case of Sulekhan Singh and company and ors. Vs. State of U.P. and ors. reported in AIR 2016 SC 228, the Hon'ble Supreme Court, of course, dismissed the appeal holding (17 of 23) [ CW-1312/2014] that the decision of the authority was based on public interest but while doing so relied on the judgments rendered in the case of State of Tamil Nadu Vs. Hind Stone etc. reported in 1981 (2) SCC 205 and Monnet Ispat and Energy Limited (supra) and referred to the relevant paragraphs of the same as under :-
"22 . Reiterating the decision in Hind Stone (supra), this Court in Monnet Ispat & Energy Ltd. v. Union of India : 2012 (11) SCC 1 held as under :
132 . ...Minerals--like rivers and forests--are a valuable natural resource. Minerals constitute our national wealth and are vital raw material for infrastructure, capital goods and basic industries. The conservation, preservation and intelligent utilisation of minerals is not only the need of the day but is also very important in the interest of mankind and succeeding generations. Management of minerals should be in a way that helps in the country's economic development and which also leaves for future generations to conserve and develop the natural resources of the nation in the best possible way. For the proper development of economy and industry, the exploitation of natural resources cannot be permitted indiscriminately; rather the nation's natural wealth has to be used judiciously so that it may not be exhausted within a few years.
133. ...No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. in Hind Stone (SCC p. 213, para 6) albeit in the context of minor mineral, 6 . ...The public interest which induced Parliament to make the declaration contained in Section 2 ... has naturally to be the paramount consideration in all matters concerning the Regulation (18 of 23) [ CW-1312/2014] of mines and the development of minerals.
He went on to say: (Hind Stone case, SCC p.
217, para 10) 10 . ... The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed ... at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present.
23. It was further observed:
182.7. The doctrine of promissory estoppel cannot be invoked in abstract. When it is sought to be invoked, the court must consider all aspects including the result sought to be achieved and the public good at large. The fundamental principle of equity must forever be present to the mind of the court. Absence of it must not hold the Government or the public authority to its promise, assurance or representation.
xxxx 188.3. Where the decision of an authority is founded in public interest as per executive policy or law, the court would be reluctant to interfere with such decision by invoking the doctrine of legitimate expectation. The legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so."
What emerges from the above is that before the Courts venture to examine the decision of the Government in such like matter it must have (a) public interest as the paramount (19 of 23) [ CW-1312/2014] consideration, (b) the natural resources are not exploited indiscriminately by private parties and (3) the doctrine of promissory estoppel is not invoked in abstract.
Applying the test to the case in hand, let us examine whether the respondent authorities applied their mind while concluding that the decision was in public interest. As per the stand of the petitioner, an investment to the tune of more than Rs. 600 crores is going to be made in the rural area providing for numerous employment opportunities directly as well as indirectly to the villagers. It is further submitted that it will pay V.A.T. to the tune of Rs. 93.16 crores per annum on the production of 1.37 million metric tons of cement at the rate prevailing today i.e. Rs. 680/- per ton and other duties and taxes to the tune of Rs. 10 crores approximately per annum to the State Government. Further, the petitioner will pay Rs. 150 crores approx. per annum to the Central Government in the form of Central Excise (Rs. 72.61 crores), Income Tax (Rs. 66.20 crores) and Service Tax (Rs. 11.20 crores). Further, on the purchase of machinery, the petitioner will pay Rs. 07 crores approximately as central sales tax. The petitioner will further pay service tax on the construction of building to the tune of Rs. 07 crores approx. Learned counsel for the petitioner also submitted the calculation of the revenue to be generated by the project of the petitioner in the next 25 years based on the present rates of taxes and duties to the extent of Rs. 6329.25 crores by holding the same to be speculative figure of the revenue as per the prevailing rates of taxes and duties in the (20 of 23) [ CW-1312/2014] financial years 2014 and 2015 and in case, 2% is reduced on account of G.S.T., still, the total revenue generated is stated to be approx. 6000 crores in the next 25 years. It was submitted that any revenue to be generated through excavation of the limestone will not be even half of the revenue as generated by the petitioner on account of the said project. Moreover, the Government did not take any prospecting or mining operation for the said mineral over the land in question. Hence, the calculation, if any, with respect to the mineral and the gain to the government as calculated by the respondent - State is without any basis and totally hypothetical.
Moreover, procuring raw material for manufacturing cement, mining leases bearing Nos. 338/08, 80/07, 335/08, 6/95, 4/95, 120/95, 334/08, 176/97, 176/95, 173/89, 573/09, 62/94 and 49/93 were held by different persons and the sister concerned of the petitioner, namely, Sunder Chemicals. The said mining leases are situated near to the land in question. The Mining Lease No. 338/08 is just adjacent to the land in question and other mining leases are in the vicinity of the land in question and contiguous to one or other except mining lease No. 49/93. These mining leases now stand transferred in favour of the petitioner after obtaining permission from the competent authority. If plant is to be located at a place away from mining lease of the petitioner, it will increase the production cost in the form of transportation cost. It is precisely for this reason that all the cement plants in the State are located either in the mining lease (21 of 23) [ CW-1312/2014] area itself or just near to mining lease area. Moreover, the mineral lying beneath the land remains untouched. Hence, the interest of the State can always be safeguarded by granting lease for a limited period. In any case, it is admitted that the same is liable to be renewed after every 35 years. From the above, it is evident that the decision by the State is not based on public interest. The pros and cons of the decision do not appear to have been weighed properly. It is evident that the same has been taken without application of mind and without any material available with the Government. Such a decision on the one hand will not only result in depriving the State of the revenue as above but on the other hand, the land for mining of mineral may not even turn out to be viable as no scientific basis has been adopted by the Government to collect the exact percentage of mineral present in the area.
The fear of exploitation of natural resources at the hands of the private parties in the present case does not arise as there is a huge difference between grant or cancellation of a mining lease on one hand and grant or cancellation of a lease-deed for setting up of an industrial unit which is ancillary to mining on the other hand. Mining invites excavation of minerals which belong to the State. The State has to be careful of its exploitation at the hands of the private parties. The setting up of a cement manufacturing plant, in no manner, extracts the mineral present in the land on which the industrial unit is set up.
The action of the State in allotting the land to the petitioner (22 of 23) [ CW-1312/2014] also gave rise to the reasonable expectations and acting upon the same, the petitioner invested a huge sum of almost Rs. 30,00,00,000/- for establishing a cement plant. The Apex Court in the case of Gujarat State Financial Corporation Vs. M/s Lotus Hotels Pvt. Ltd. reported in (1983) 3 Supreme Court Cases 379 too opined that a petition under Article 226 of the Constitution can certainly be invoked to direct performance of a statutory duty by 'other authority' as envisaged by Article 12 and the Court was not powerless from holding the State to its promise by observing in Para 13 of the judgment as under :-
"13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its un- reasonable conduct, to the respondent. In such a situation, the Court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct performance of statutory duty by 'other authority' as envisaged by Article 12."
In view of the above discussion and in the facts of the present case, this Court has no inhibition in setting aside impugned decision of the respondents taken in the minutes of the meeting dated 23.01.2014 being arbitrary, without application of mind and definitely not based on any material whatsoever, which definitely smells of something not being correct. Moreover, Rule 73 of the Rajasthan Minor Mineral Concession Rules, 1986 provides for reservation of the area for prospecting or mining operations by the Government but the land in question has not (23 of 23) [ CW-1312/2014] been entered by the State Government as mineral potential area in the revenue record till date and admittedly there is no bar in the rules for allotment of the mineral bearing land for establishment of a cement plant. Admittedly, the lease has been granted and land containing mineral has been allotted for setting up the industrial units after 2011.
Accordingly, both the writ petitions are allowed. The impugned decision of the respondents taken in the minutes of the meeting dated 23.01.2014 is set aside and the respondents are directed to proceed for execution of the lease deed of the land in question in favour of the petitioner in accordance with law.
(NIRMALJIT KAUR), J.
Inder/Jr.P.A.