Gujarat High Court
M/S Bhupatrai Shivram vs The Joint Secretary And Revisionary ... on 23 January, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14827 of 2019
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M/S BHUPATRAI SHIVRAM
Versus
THE JOINT SECRETARY AND REVISIONARY AUTHORITY
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Appearance:
MR NIRAV R MISHRA(6140) for the Petitioner(s) No. 1
MS. DHWANI TRIPATHI, AGP for the Respondent(s) No.2,3,4
Notice served by DS (5) for the Respondent(s) No.1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/01/2024
ORAL ORDER
1. RULE, returnable forthwith. Ms. Dhwani Tripathi,
learned Assistant Government Pleader waives service of Rule for
and on behalf of the respondent- State authorities. Though
served, none appears for and on behalf of the respondent no.1.
2. With the consent of the learned advocates appearing
for the respective parties, the present petition is taken up for
final hearing.
3. By way of the present Petition, petitioner herein has
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prayed for the following reliefs:
"A) Your Lordships may be pleased to issue a writ of certiorari
or any other writ, order or direction to quash and set aside the
impugned Final Order no. 58/2019 dated 23.07.2019 passed by
the Revisionary Authority in the Revision Application filed by
the petitioner;
B) Your Lordships may be pleased to issue a writ of certiorari or
any other writ, order or direction to quash and set aside the
impugned order dated 07.05.2018 passed by the State
Government, whereby it decided not to extend the period of
bauxite mineral lease awarded to the petitioner under the
provisions of section 8A(5)/(6) of the Mines and Minerals
(Development and Regulation) Act, 1957 read with Mineral
Concession Rules 1960;
C) Your Lordships may be please to issue a writ of mandamus or
any other writ, order or direction commanding the respondent
authorities to condone the delay of 172 days in moving the
application for the renewal of mining lease awarded to the
petitioner;
D) Your Lordships may be pleased to issue a writ of mandamus
or any other writ, order or direction commanding the respondent
authorities to grant the petitioner extension of the period of
bauxite mineral lease awarded to it, under the amended
provisions of section 8A(5)/(6) of the Mines and Miners
(Development and Regulation) Act, 1957 read with Mineral
Concession Rules 1957;
E) Pending admission and final hearing of the present petition,
Your Lordships may be pleased to stay/suspend the operation
and implementation of the impugned Final Order no. 58/2019
dated 23.07.2019 passed by the Revision Authority;
F) Pending admission and final hearing of the present petition,
Your Lordships may be pleased to stay/suspend the operation
and implementation of the impugned order dated 07.05.2018
passed by the State Government;
G) Pending admission and final hearing of the present petition,
Your Lordships may be pleased to restrain the respondent
authorities from taking possession of the mining areas of land in
survey number 323 to 326 of Maujae Harsol, Taluka Prantij
(now Talod) and District Sabarkantha covered under the mining
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lease originally granted to the petitioner; and
H) Your Lordships may be pleased to pass any other and/or
further order, as deemed fit, in the interest of justice."
4. Heard Mr. Nirav R. Mishra, learned advocate
appearing for the petitioner and Ms. Dhwani Tripathi, learned
Assistant Government Pleader appearing for the respondent- State
authorities.
5. Brief facts leading to the filing of the present Petition
reads thus:
5.1. The petitioner was granted lease by the respondent
no.2 on 21.11.1972 for carrying out mining bauxite for a period
of 20 years in the areas in Survey No. 323 to 326 of Mouje:
Harsol, Tal.: Prantij (now Talod), Dist.: Sabarkantha admeasuring
19-16-00 Hector.
5.2. The petitioner applied seeking renewal of the lease on
expiry of 20 years by an application dated 28.10.1992, which
came to be declined by the respondent no.2 by order dated
07.05.2018, having decided not to extend the period of mining
lease awarded to the petitioner by order dated 21.11.1972 under
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the provisions of Section 8A(5)/(6) of the Mines and Minerals
(Development and Regulation) Act, 1957 (hereinafter referred to
as 'the Act, 1957' for the sake of brevity).
5.3. Being aggrieved and dissatisfied by the said order
passed by the respondent no.2 on 07.05.2018, the petitioner
approached the Revisional Authority i.e. respondent no.1 herein
by preferring Revision Application dated 28.05.2018 under
Section 30 of the Act, 1957. By its final order No. 58 of 2018
dated 23.07.2019, the Revision Application came to be dismissed,
whereby, the order passed by the respondent no.2 came to be
confirmed by the respondent no.1.
5.4. Being aggrieved by the aforesaid orders passed by the
Revisional authority dated 23.07.2019 and dismissing the Revision
Application dated 28.05.2018, the petitioner herein approached
this Court by way of the present Petition invoking Article-226 of
the Constitution of India, with the above-referred reliefs.
6.1. Mr. Nirav R. Mishra, learned advocate appearing for
the petitioner mainly submitted that while passing the impugned
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order, the respondent no.1 has rejected the Revision Application
of the petitioner, on the ground of delay. It is held by the
respondent no.1 that the Revisionist was supposed to apply for
renewal one year prior to the expiry of ongoing lease, as per
Rule-24(A) of the MCR, 1960, but there was a delay of 172 days
in preferring the said application. While rejecting the Revision
Application, the respondent no.1 also was aware that the
respondent no.4 opined that an extension of the lease could be
considered on the ground that pending dues were cleared by the
Revisionist. However, in absence of 2nd renewal application, as
such on 20.07.2016, the Geologist - respondent no.4 has opined
that as per the existing laws, the said lease was to be cancelled
and that too the lease had been non-operative for more than 10
years.
6.2. It was submitted by the State Government before the
respondent no.1 that the condonation of delay is a discretionary
powers and that the same cannot be claimed as a matter of
right, and hence, the respondent no.1 declined to consider the
Revision Application of the petitioner seeking renewal of lease.
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6.3. It appears that the respondent no.2 failed to consider
the medical certificates/ medical papers, which were produced by
the petitioner - Revisionist for the period from 2012 to 2017,
whereas, the first renewal application of Bauxite mining was to
expire on 08.05.1993 and the revisionist had submitted first
renewal application on 28.10.1992 i.e. after a period of 172 days.
6.4. In line of the aforesaid, seeking renewal of the lease,
came to be rejected on the ground that there was a delay of 172
days in submitting the 1st renewal application dated 28.10.1992,
was on account of medical grounds, but such documentary
evidence was not produced.
6.5. Mr. Mishra, learned advocate, during the course of
hearing, has taken the Court through the medical certificates as
produced before the respondent authorities and submitted that
the said certificates were duly produced before the respondent
authority with respect to medical exigency, however, the
respondent authority has failed to consider such certificates and
in view thereof, limits the prayer to the extent that the petitioner
be relegated to the respondent authority to consider the medical
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certificates which were produced by the petitioner before the
respondent authority and take an independent decision,
considering the same.
6.6. Mr. Mishra, learned advocate further submitted that
while rejecting the Revision Application, the Revisional Authority
ought to have considered the medical certificates/ papers duly
produced by the petitioner herein and in view thereof, the
application seeking renewal has been declined, without
considering the materials on record.
6.7.1. Mr. Mishra, learned advocate placed reliance on the
decision rendered by this Court in case of Induben Mahendrabhai
Rathava V/s. State of Gujarat reported in 2015 (0) AIJEL-HC
233055, relevant Para-11, which reads thus:
"11. In opinion of this Court, when the certificate was issued,
it was incumbent upon the authorities to consider the
same including the genuineness and its worthiness to come to the
conclusion whether the petitioner has been able to establish
sufficient cause or not which is clearly provided under proviso to
subrule (4) of Rule 17 of the Rules. In absence of
such exercise therefore, the order dated 8.11.2010 passed
by the District Collector, Vadodara and the order dated
3.8.2013 passed by the revisional authority are quashed
and set aside and the proceedings of the renewal application are
remitted back to the District Collector, Vadodara for
its reconsideration on merits including the aspect of delay.
Considering the fact that 5 years have goneby, the
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District Collector shall give utmost priority to the
application and shall pass a reasoned order after
giving an opportunity of being heard to the petitioner within
a period of four weeks from the date of receipt of this
judgment."
6.7.2. Mr. Mishra, learned advocate also placed reliance on
the decision rendered in the case of Tata Chemicals Limited V/s.
Union of India reported in 2000 (3) GLR 2749, relevant Para-7
reads thus:
"7. Even otherwise, I am of the view that the Central
Government was not justified in rejecting the revision
application as time barred because the communication dated
May 14, 1987 itself furnished sufficient cause for condonation of
delay. In communication dated May 14, 1987, it was specifically
informed by the State Government that if the petitioner was
interested in getting renewal of lease, the petitioner should file
a revision application to the Central Government as required by
the Mineral Concession Rules, 1960. In the alternative, the
petitioner was also advised to approach the Collector of
Junagadh for refund of fee if paid by it. In M/s. Harkaran Das
Mangilal (supra), the Supreme Court while considering the
provisions of Mines and Mineral (Regulation and Development)
Act, 1957, has held that revision in renewal cases should not be
rejected on the ground of delay, unless special reasons for not
condoning delay exist. In that case, mining lease in respect of
china clay was granted to the appellants. The Central
Government by its Final Order had set aside the order of the
State Government passed in favour of the appellants and
directed that the State Government need not pass any fresh
orders on the renewal application of the appellants, since it was
deemed to have been rejected on December 23, 1975 and since
the appellants had not filed a revision application against the
deemed rejection within the prescribed period of limitation.
After noticing that the Central Government has powers to
condone delay caused in filing revision, what is emphasised by
the Supreme Court is that unless there are special reasons, delay
should be condoned. Again, in case of SHRI NAND LAL JAIN v.
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STATE OF BIHAR, (1980) 3 SCC 317, it is ruled by the Supreme
Court that in absence of special reasons, application for
condonation of delay should not be rejected."
7. Ms. Dhwani Tripathi, learned Assistant Government
Pleader appearing for the respondent - State authorities was not
in a position to controvert the aforesaid fact that, while passing
the impugned order, the respondent authorities failed to take into
consideration the medical certificates duly produced by the
petitioner for the period from 2012 to 2017.
8. Considering the submissions advanced by the learned
advocates appearing for the respective parties, in the opinion of
this Court, while passing the order dated 07.05.2018 rejecting /
declining to consider the application of the petitioner seeking
renewal, placing reliance on Rule-24-A of the MCR, 1960, which
is duly produced at Pag.142. However, the said order is silent
with respect to the medical papers / medical certificates produced
by the petitioner before the respondent authority. While passing
the final order No. 58 of 2019 dated 23.07.2019, confirmed the
order passed by the respondent no.1 - State Government dated
07.05.2018 on the ground that there was a delay in preferring
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the Revision Application. The reasonings in the said order are
distinct and while passing the said order, the respondent no.1
has failed to take into consideration the explanation rendered by
the petitioner herein while preferring an application seeking
renewal of lease dated 20.08.1992. The respondent no.1 ought to
have taken into consideration the explanation rendered by the
petitioner herein, wherein, the application stands rejected on the
ground that there was a delay of 272 days in submitting the 1 st
renewal application dated 28.10.1992 was on account of medical
grounds, however, no such documentary evidences were placed
on record. The aforesaid is contrary to the documents that are
produced on record.
9. Considering the position of law as laid down in the
case of Induben Mahendrabhai Rathava (supra) and Tata
Chemicals Limited (supra) as referred above and the facts and
record of the present case, the impugned order dated 07.05.2018
passed by the respondent no.2 and the final order No. 58 of
2019 dated 23.07.2019 passed by the respondent no.1 -
Revisional Authority are hereby quashed and set aside, exercising
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extraordinary jurisdiction under Article-226 of the Constitution of
India. It is undisputed that the said certificates were produced on
record before the respondent no.2 - State Government. The
application filed by the petitioner seeking renewal be decided
afresh, by the respondent - State Government.
10. This Court has otherwise not opined on the merits of
the matter, reserving the liberty in favour of the respondent
authority to take a decision in accordance with law,
independently and after considering the documents that were
produced on record by the petitioner herein and after granting an
opportunity of hearing to the petitioner herein.
11. With the aforesaid, the present Petition is allowed to
the aforesaid extent. Rule is made absolute to the aforesaid
extent.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
