M/S. A.P. Mining Corporation ... vs The State Of Jharkhand
2021 Latest Caselaw 1623 Jhar

                             1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            L.P.A. No.444 of 2019
                     With
              I.A.No.416 of 2021
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M/S. A.P. Mining Corporation through its Proprietor namely, Asim Kumar Bhakat @ Ashim Kumar Bhakat, S/o Sri Parshuram Bhakat, R/o Rajgram, P.O. Rajgram, P.S.-Muraroi, Dist.-Birbhum (W.B.), having its office at Hariram, P.O.-Chengadanga, P.S.-Malpahari Muffassil, Dist.-Pakur (Jharkhand) .... .... Appellant Versus

1. The State of Jharkhand

2. The Mines Commissioner, Jharkhand, Ranchi, Department of Mines and Geology, Govt. of Jharkhand, Ranchi, Nepal House, P.O. & P.S.- Doranda, Dist.-Ranchi (Jharkhand)

3. The Director of Mines, Department of Mines and Geology, Govt. of Jharkhand, Ranchi, Nepal House, P.O. & P.S.-Doranda, Dist.-Ranchi (Jharkhand)

4. The Deputy Commissioner, Pakur, P.O.-Pakur, P.S.-Pakur(T), Distt.- Pakur (Jharkhand)

5. The Assistant Mining Office, Pakur, P.O.-Pakur, P.S.Pakur(T), Distt.-

   Pakur (Jharkhand)
                                              ......         ..... Respondents

CORAM : HON'BLE THE CHIEF JUSTICE
              HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant   : Mr. Kalyan Roy, Advocate
                    : Mr. Siddhartha Roy, Advocate

For the Resp.-State : Mr. Rohit Sinha, A.C to AAG-I

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ORAL JUDGMENT 08/Dated: 06.04.2021

The matter has been heard with the consent of learned counsel for

the parties through video conferencing. There is no complaint about any

audio and visual quality.

I.A.No.416 of 2021

This interlocutory application has been preferred under Section 5 of

the Limitation Act for condoning the delay of 11 days in preferring this

Letters Patent Appeal.

Heard.

In view of the submissions made on behalf of the parties and the

averments made in the interlocutory application, we are of the view that

the appellant was prevented by sufficient cause in preferring the appeal

within the period of limitation.

Accordingly, I.A.No.416 of 2021 is allowed and delay of 11 days in

preferring the appeal is condoned.

L.P.A. No.444 of 2019

The instant intra-court appeal is directed against the order/judgment

dated 15.03.2019 passed by the learned Single Judge of this Court in

W.P.(C) No.2665 of 2016, whereby and whereunder, the writ Court has

refused to interfere with the order dated 10.02.2016 passed in Revision

Case No.101/2014 by the Court of Mines Commissioner, Jharkhand,

Ranchi, whereby the petition dated 29.01.2016 filed by the writ petitioner

for recall and modification of the order dated 09.10.2015 passed in

Revision Case No.101/2014 has been dismissed on the ground that the

Court is not competent to recall the order passed and testified the order

on merit and the respondent no.5 has been directed to take suitable steps

in accordance with Law for realization of Government dues at the earliest

and the matter has been disposed of and further has also refused to

interfere with the order dated 09.10.2015 passed in Revision Case

No.101/2014 by the respondent no.2 as well as the Letter No.858/M dated

11.04.2016 issued by the respondent no.5 and also for setting aside the

deemed refusal of the renewal application dated 12.02.2014 filed for

renewal of the stone mining lease over an area of 6.55 acres of land

bearing Plot Nos.165, 166, 167 and 205, Cadastral Survey No.99 situated

in Mauza-Harirampur, P.S.-Pakur(M) in the District of Pakur for a period of

further 10 years w.e.f. 03.06.2014 to 02.06.2024.

2. The brief facts of the case required to be enumerated which reads

as hereunder:-

The competent authority of the State of Jharkhand has issued

mining lease in favour of the writ petitioner over an area of 6.55 acres of

land bearing plot no.165, 166, 167 and 205, Cadastral Survey No.99

situated at Mauza-Harirampur, P.S.-Pakur(M) in the District of Pakur for a

period of 10 years w.e.f. 03.06.2004 to 02.06.2014 vide lease deed

executed on 17.12.2004 and registered on 17.03.2005.

The writ petitioner had conducted the mining operations over the

leased out area and paid the rent and royalty to the opposite parties

regularly and up-to-date.

The writ petitioner has made an application for renewal of mining

lease in terms of the provision of Rule 23(1) of the Jharkhand Minor

Mineral Concession Rules, 2004, (hereinafter referred as the Rules, 2004)

which stipulates that the renewal application for grant of renewal of the

mining lease of minor minerals shall be made in form-F at least 90 days

before the expiry of the lease period but not before 180 days. Accordingly,

the writ petitioner has filed a renewal application on 12.02.2014.

The lease period of the said mining lease has expired on

02.06.2014 as also the extended period also expired on 31.08.2014 but

no order either for approval or rejection was passed upon the renewal

application by the respondents rather it was kept pending and become

deemed refusal and time barred on expiry of the statutory period as

provided under the provision of Rules, 2004.

The writ petitioner, therefore, had filed revision application being

Revision Case No.101 of 2014 before the respondent no.2, Mines

Commissioner on 04.09.2014 for setting aside the deemed refusal of

renewal application dated 12.02.2014 for extension of time limit and for a

direction upon the respondent nos.4 and 5 to renew the mining lease in

favour of the writ petitioner for a period of 10 years w.e.f. 03.06.2014 to

02.06.2024.

The writ petitioner as claimed, had submitted the draft of mining

plan along with Progressive Mining Closure Plan for the applied stone

mining lease for approval of the Director of the Mines, Department of

Mining and Geology, Govt. of Jharkhand. But the said Revision Case

No.101 of 2014 was rejected by the respondent no.2 vide order dated

09.10.2015 on the ground that there was an outstanding dues of

Rs.4,46,364/- against the writ petitioner and the writ petitioner had failed

to submit Royalty Clearance Certificate, Approved Mining Plan and

Environmental Clearance for the applied stone mining lease as also the

Assistance Mining Officer, Pakur was directed to take possession of the

area and to get it advertised for an early settlement and to institute a

certificate proceeding for realization of the Government revenue in

accordance with Law.

It is the case of the writ petitioner that the writ petitioner had paid a

sum of Rs.55,000/- on 17.11.2011, Rs.50,000/- on 06.03.2013 and

Rs.50,000/- on 18.03.2013 i.e., a total sum of Rs.1,55,000/- against the

royalty for stone mining lease but the writ petitioner could not produce the

treasury challans for the same before the respondent no.2 at the time of

hearing and the same was rejected vide order dated 09.10.2015 in

Revision Case No.101 of 2014.

The writ petitioner after making payment of due amount has filed

review application before the Mines Commissioner for recall and

modification of the order dated 09.10.2015 passed in Revision Case

No.101 of 2014 and for grant of another extension of time limit for renewal

of mining lease but the said application has also been dismissed vide

order dated 10.02.2016 passed in Revision Case No.101/2014.

The writ petitioner being aggrieved with both the orders has

approached to this Court by invoking the jurisdiction under Article 226 of

the Constitution of India by filing the writ petition being W.P.(C) No.2665 of

2016, whereby and whereunder, the writ Court has refused to interfere

with the orders dated 10.02.2016 and 09.10.2015 by dismissing the writ

petition, which is the subject matter of the present intra-court appeal.

3. Mr. Kalyan Roy, learned counsel appearing for the appellant-writ

petitioner has submitted that the learned Single Judge has failed to

appreciate that once the due amount has been cleared, the learned Single

Judge ought to have remitted the matter before the authority concerned

for taking a decision but having not done so, serious error has been

committed, therefore, the impugned order is not sustainable in the eyes of

Law.

He further submits that the subsequent order passed by the Mines

Commissioner for not recalling/reviewing the order dated 09.10.2015, the

same also suffers from infirmity, in view of the fact that rejection of the

renewal application is only on the ground of non-deposit of the due

amount and once the amount has been deposited, it was incumbent upon

the Mines Commissioner to modify the order for grant of extension of time

limit for renewal of mining lease but this fact has not been appreciated by

the learned Single Judge.

4. Per Contra, Mr. Rohit Sinha, learned AC to AAG-I appearing for the

respondent-State of Jharkhand has submitted that there is no infirmity in

the impugned order as because the learned Single Judge after taking into

consideration the fact about the due amount which was lying with the writ

petitioner on account of the aforesaid mining lease since has not been

cleared during the pendency of the said application, as such, the said

application deemed to have been cancelled and when the revision has

been preferred invoking the jurisdiction under Rule 62 of the Rules, 2004,

the Mines Commissioner, under the revisional jurisdiction, has taken note

of the fact that the writ petitioner has committed illegality by not depositing

the dues, therefore, has declined to interfere with the deemed rejection of

the renewal application.

Further, the Mines Commissioner has refused to recall the said

order by recording the reason that once the order has been passed, the

Mines Commissioner is having no jurisdiction to review/recall the order

passed on 09.10.2015 as under the statute, there is no power of review

conferred upon the Mines Commissioner to recall or modify the original

order.

Learned counsel, therefore, argues that in view of the aforesaid fact,

the impugned order requires no interference.

5. We have heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the learned

Single Judge in the impugned order.

6. The admitted fact herein is that the mining lease has been issued in

favour of the writ petitioner for a period of 10 years i.e., 03.06.2004 to

02.06.2014 vide lease deed executed on 17.12.2004 and registered on

17.03.2005.

The writ petitioner had applied for renewal of the lease on

12.02.2014 but the lease since was expired on 02.06.2014, therefore, the

same was extended till 31.08.2014 and in the meanwhile, no order of

renewal was passed resulting in deemed refusal of renewal of lease.

The writ petitioner being aggrieved with the deemed refusal of the

renewal of lease has preferred revision application on 04.09.2014 before

the Mines Commissioner, Jharkhand which was numbered as Revision

Case No.101 of 2014 for setting aside the deemed refusal of renewal

application dated 12.02.2014 and for a direction upon the respondent

nos.4 and 5 to renew the mining lease in favour of the writ petitioner for a

period 10 years w.e.f. 03.06.2014 to 02.06.2024.

It appears from the revision application wherein, the ground of

rejection has been recorded that there was outstanding dues of

Rs.4,46,364/- against the writ petitioner and the writ petitioner had failed

to submit the Royalty Clearance Certificate, Approved Mining Plan and

Environmental Clearance.

It further appears from the order passed by the Mines

Commissioner on 09.10.2015, wherein the reason has been recorded by

taking aid of the provision of Rules, 2004 where the mandatory

requirement has been provided for submission of Royalty Clearance

Certificate, Approved Mining Plan and Environmental Clearance.

Further, it appears that the writ petitioner has been provided with an

opportunity for payment of outstanding dues but the writ petitioner has

failed to clear the dues and still on the date of consideration of renewal

application, there was an outstanding dues of Rs.4,46,364/- against the

writ petitioner.

Further, the contention of the writ petitioner is that the writ petitioner

had filed an application for recall/modification of order dated 09.10.2015

but the same has also been rejected vide order dated 10.02.2016 on the

ground that the Court of Mines Commissioner is not competent to recall

the order passed and testified the order on merit.

7. This Court before going across the legality and propriety of the

impugned order, deem it fit and proper to scrutinize the order passed by

the Mines Commissioner in Revision Case No.101 of 2014 dated

09.10.2015 and further the order passed on 10.02.2016 for recall of the

order dated 09.10.2015.

8. In order to examine the provision based upon which the renewal

application submitted by the writ petitioner has been rejected, we have

gone across the provision of Rule 23 of the Rules, 2004, wherefrom it is

evident that the provision of Rule 23 provides for submission of renewal

application for grant of renewal of mining lease shall be at least 90 days

prior to the expiry of the period of lease but not before 180 days, such

application shall be attached with several documents and requisite fee of

Rs.5000/-. The document includes the title over the land in question,

character certificate, up-to-date income tax return, the payment certificate

of income tax and the application along with affidavit giving therein the

details of the other mining lease.

It further provides that if the renewal application for the mining lease

is not being disposed within the subsistence period of lease, the period of

the aforesaid mining lease will be extended by 90 days or up-to the date

of the order passed by the competent authority, whichever is earlier, but if

such application will not be disposed in terms of sub-rule (2) of Rule 23, it

will be treated to be rejected. For ready reference, the provision of Rule 23

of the Jharkhand Minor Mineral Concession Rules, 2004 is being quoted

which reads as hereunder :-

It is evident from the order dated 09.10.2015 passed by the Mines

Commissioner in Revision Case No.101 of 2014 that although the writ

petitioner has filed renewal application in time but due to non-submission

of the statutory clearances, his application has been rejected due to efflux

of time.

It has further been referred under the provision of Rules, 2004 that it

was mandatory to submit the Royalty Clearance Certificate, Approved

Mining Plan and Environmental Clearance before grant or renewal of

mining lease.

Further, it appears from the aforesaid order that certain amount has

been found to be outstanding to be paid by the writ petitioner to the tune of

Rs.4.46,364/- but the same has not been paid in spite of repeated

opportunity granted to the writ petitioner. The Mines Commissioner upon

such ground has rejected the revision application.

The learned Single Judge has considered this aspect of the matter

and taking into consideration the reason assigned therein, refused to

interfere with the same by declining to issue the Writ of Certiorari.

Further, the writ petitioner has made an application for recall of

order dated 09.10.2015 on the ground that the mandatory requirement,

based upon which, the revision case being Revision Case No.101 of 2014

has been rejected vide order dated 09.10.2015, since has been meted

out, therefore, the aforesaid order dated 09.10.2015 is required to be

recalled but the same has also been refused to be interfered with on the

ground that the Mines Commissioner is having no power to review its own

order as because such power has not been conferred upon him.

9. So far as the refusal of the learned Single Judge to interfere with the

order dated 09.10.2015 passed in Revision Case No.101 of 2014 is

concerned, this Court is of the considered view that since the writ

petitioner has prayed for issuance of Writ of Certiorari in exercise of power

conferred under Article 226 of the Constitution of India, therefore, before

invoking such jurisdiction, the High Court is required to look into the

legality and propriety of the order on the face of it and if it appears to the

writ Court that there is apparent error on the face of the order, it is only

then the Writ of Certiorari is required to be issued by quashing and setting

aside the impugned decision of the Administrative Authority.

Such proposition of Law has been laid down by the Hon'ble Apex

Court in Syed Yakoob vs. K.S. Radhakrishnan and Ors., A.I.R. 1964

Supreme Court 477. Paragraph no.7 of the said judgment is being

reproduced hereinbelow:

"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC

398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.

In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors., AIR 1955

Supreme Court 233, the Hon'ble Supreme Court has held as hereunder

in paragraph no.21:

".............to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."

In Sawarn Singh and Anr. vs. State of Punjab and Ors., (1976) 2

SCC 868 their Lordships, while discussing the power of writ under Article

226 of the Constitution of India for issuance of writ of certiorari, has been

pleased to hold at paragraph nos.12 and 13 as hereunder:

"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra)

13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

In Heinz India (P) Ltd. and Anr. vs. State of U.P. and Ors., (2012)

5 SCC 443 their Lordships have been pleased to hold at paragraph nos.66

and 67 as hereunder:

"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.

67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."

In Thansingh Nathmal vs. The Superintendent of Taxes, Dhubri

& Ors., A.I.R. 1964 Supreme Court 1419, Hon'ble Supreme Court has

been pleased to hold that the High Court does not determine question

which requires elaborate examination of evidence to establish the right to

enforce for which the writ is claimed.

Recently, the Hon'ble Apex Court in General Manager, Electrical

Rengali Hydro Electric Project, Orissa and Others vs. Giridhari Sahu

and Ors., (2019) 10 SCC 695 has delved upon the issue about scope of

issuance of writ of certiorari by the High Court and has laid down that, if

the finding recorded by the court is erroneous and based upon perversity,

the order is fit to be quashed/set aside.

10. This Court after going across the order of rejection of Revision Case

No.101 of 2014 which was rejected on 09.10.2015 due to non-furnish of

mandatory requirements as per the provision of Rules, 2004 as also the

non-deposit of outstanding dues in spite of repeated opportunity granted

to the writ petitioner, is of the view that such reason cannot be said to

suffer from infirmity and if the learned Single Judge has refused to

interfere with the order dated 09.10.2015 by not issuing the Writ of

Certiorari, the same according to our considered view also cannot be said

to suffer from infirmity.

11. So far as the order dated 10.02.2016 is concerned, it is the settled

position of Law that the power of review/recall or appeal is to be exercised

by the Administrative Authority or the Court of Law if specifically provided

under the statute.

12. This Court after going across the provision of revision as conferred

to the Mines Commissioner under Rule 62 of the Rules, 2004 has found

therefrom that save and except the power of revision and appeal, there is

no provision of review.

13. The writ petitioner, admittedly has filed an application for

recall/modify of order dated 09.10.2015 which has been rejected on

consideration of the issue on merit and when such application for

recall/modification of the order dated 09.10.2015 has been filed, the same

is nothing but by way of review and as per the position of Law, the power

of review cannot be exercised, if not conferred under the statute.

The order passed by the Mines Commissioner, rejecting the

application filed for recall/modification of the order dated 09.10.2015 vide

order dated 10.02.2016 cannot be said to suffer from infirmity.

14. The learned Single Judge after taking into consideration the

aforesaid legal position is correct in not interfering with the order dated

10.02.2016 by holding that such application for recall/modify of the order

dated 09.10.2015 itself was not maintainable.

15. We after taking into consideration the fact as discussed hereinabove

in entirety are of the view that the order passed by the learned Single

Judge or the Administrative Authority requires no interference.

16. In the result, the instant appeal fails and is, dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-

.A.F.R.