Telangana High Court
M/S Penna Cement Industries Limited vs Union Of India on 26 February, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
1
WP_4961_2022
SN,J
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 4961 of 2022
Between:
M/s Penna Cement Industries Limited
... Petitioner
And
Union of India and others
... Respondents
JUDGMENT PRONOUNCED ON: 26.02.2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : Yes
_________________
SUREPALLI NANDA, J
2
WP_4961_2022
SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 4961 of 2022
% 26.02.2024
Between:
# M/s Penna Cement Industries Limited
..... Petitioner
And
$ Union of India and others
... Respondents
< Gist:
> Head Note:
!Counsel for the Petitioner: Mr V.V.N.K.Sarath Saran
^ Standing Counsel for Respondents: Mr B.Jithender,
Central Govt. Counsel
? Cases Referred:
1. (2010) 9 SCC 496
2. (2001) 5 SCC 664
3. (1951) SCC 1088
3
WP_4961_2022
SN,J
HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 4961 of 2022
ORDER:
Heard Mr V.V.N.K. Sarath Saran, learned counsel
appearing on behalf of the petitioner and Mr
B.Jithender, learned Central Government Counsel
appearing on behalf of respondents.
2. This Writ Petition is filed to issue a Writ of Mandamus,
declaring that the action of the 3rd respondent in passing the
order No. AP/KNL/MP/Lst-146/Hyd, dated 01.04.2021
refusing to process mining lease Application submitted by the
petitioner company dated 15.02.2021 in respect of Kowlapalli
limestone mine over an extent of 556.938 Hectares in Sy No
124 & 152 of Kowlapalli Village, Peapully Mandal, Kurnool
District, Andhra Pradesh, under section 10 A (2) (b) of the
Mines and Minerals (Development & Regulation) Amendment
Act 2021 which came into force on 28.03.2021, by
misapplication of the said provision as unlawful, arbitrary and
violative of Articles 14 and 19(1) (g) of the Indian
Constitution and consequently set-aside the same by directing
WP_4961_2022
SN,J
the 3rd respondent to process the application in accordance
with law as per MMDR Amendment Act 2015.
3. The case of the Petitioner in brief, as per the
averments made by the petitioner in the affidavit filed
by the petitioner in support of the present writ petition
is as follows:
a) The Petitioner company is engaged in the business of
manufacture of cement having an installed capacity of 10
Million tons per annum at it factories and achieved a turnover
of Rs.3448 Crores in the financial year 2020-2021, by sales of
5.48 Million MTs of cement manufactured and marketed under
its own brand name "PENNA" Cement.
b) On 13.07.2000, the Petitioner Company has submitted
an application for the grant of Prospecting License in the
mining of Limestone to an extent of Ac. 622.93 gts in Sy. No.
1 to 124 and 152, Kowlapalli Village, Peapully Mandal, Kurnool
District. The Government of Andhra Pradesh, has scrutinized
the Application filed by the Petitioner and has granted the
prospecting license through G.O.Ms.NO. 193, dated
20.07.2007 for a period of 2 years.
WP_4961_2022
SN,J
c) On 14.09.2007, the Government of Andhra Pradesh has
permitted the Petitioner Company to commence the
Prospecting Operations and a Lease dated 14.09.2007 was
also executed. On 02.06.2007, the Petitioner Company has
also submitted another Application for Prospecting License
for the mining of Limestone to an extent of Ac. 800.00 Gts in
Sy. Nos. 151, 153 to 189, 233 to 304, 310, 316 to 352, 356,
359 to 363, 368 to 394 Kowlapalli Village, Peapully Mandal,
Kurnool District and the Prospecting License was granted
through GO MS NO. 91 dated 29.03.2008.
d) On 30.04.2008, the government of AP has issued the
Proceedings permitting the Petitioner Company to commence
the prospecting Operations and a Lease Deed was also
executed to that effect. Having conducted prospecting
operations, the Petitioner company submitted the
Prospecting Reports and made a combined mining lease
application for both Prospecting Lease areas on 02.09.2009
in Form-I and filed the FORM-D with the Government of A.P,
Dept. of mines, through letter No. 7541/M4/2009 dated 10-
09-2009.
WP_4961_2022
SN,J
e) During the pendency of the petitioner's application, the
Mines and Minerals (Development and Regulation) Act, 1987
(Hereinafter referred to as MIMDR Act) was amended
through MMDR Amendment Act of 2015, wherein Section
10A was inserted and according to Section 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. However, the
petitioners Prospecting Licences of the subject mines were
covered and saved under Section 10(A)(2)(b) of the said Act.
f) Since the petitioner fulfils all the conditions prescribed
under Section 10A(2)(b), the Petitioner's Mining Lease
Application is saved and is entitled to get approval of the
mining plan by the 3rdrespondent under the 2015 Act and the
mining rights of the petitioner company did not lapse and the
same were extended till 2023.
g) The Petitioner Company has made substantial progress
by investing financial resources, considerable time and
efforts in conducting their prospective operations and upon
being satisfied with the operations of the Petitioner Company,
the Government of AP through Dept. of Industries &
WP_4961_2022
SN,J
Commerce (M-III),has issued Letter of Intent (Lol) through
MemoNo.5417/M.III(1)/2018 on29.06.2018 granting in-
principle approval for the grant of Mining Lease to the
Petitioner Company for the combined area of556.938
Hectares, while requesting the Petitioner Company to submit
the Approved Mining Plan (AMP) along with Environment
Clearance (EC), Consent for Establishment (CFE) and
Consent for Operations (CFO) within a period of six (6)
months.
h) On 03.10.2018, the Petitioner Company has submitted
two draft copies of the Mining Plan. The 3rdRespondent noted
certain deficiencies to be complied and reported compliance
to the Office of Department of Mines and Geology, State of
A.P., which were duly complied with, through the letter No
AP/KNL/MP/LST- 146/Hyd dated 29.10.2018.
i) Since there was a delay in inter-se communication
between two departments, on 15.11.2018, the Petitioner
Company has applied for extension of 2 years to submit the
Approved Mining Plan (AMP) along with Environment
Clearance (EC), Consent for Establishment (CFE) for the
grant of Mining Lease.
WP_4961_2022
SN,J
j) The Director, Department of Mines and Geology,
through a letter dated 17.04.2020, vide No.
37068/D10/2009 submitted remarks about the compliance
of all the objections of the 3rd respondent and also sought
clarification about the compliance to the penalty of Rs
5,00,000/- levied by the Department.
k) On 12.10.2020, the Petitioner re-submitted the draft
mining plan and in response, the 3rdRespondent through its
letter No. AP/KNL/MP/Lst-146/Hyd dated 05.11.2020 has
again found certain deficiencies. On 27.04.2020, the
petitioner company has again submitted a representation
dated 27.04.2020 seeking extension of time to comply with
terms of the LOI. In response to the above Representation,
the Industries and Commerce Department & Department of
Mines and Geology, State of Andhra Pradesh has issued
Memo no. INCO1-MGOMAJM/24/2020-M-III wherein it was
observed that the Petitioner Company was in continuous
process of obtaining the approval of AMP from Indian Bureau
of Mines and EC & CFE from MoEF&CC, GOI and A.P. Pollution
Control Board.
WP_4961_2022
SN,J
l) Thus, the Petitioner Company was eligible for the grant
of Mining Lease and after due consideration of the same,
extension of time was granted till28.12.2020 to comply with
terms and conditions of the original letter of intent dated
29.06.2018.
m) The Petitioner through letter no. PCIL/MINES/HO/2020-
2021 dated 07.12.2020 submitted another request for
extension of time for another 2 years and the same was
approved by the Principal Secretary (Mines), Industries and
Commerce Department, Government of AP through its Memo
No. INCO1-MGOMAJM/24/2020-M-III dated 12.02.2021
whereby the period was extended up to 11.02.2023 for
compliance of deficiencies.
n) Subsequently, the petitioner company has complied
with all the deficiencies and submitted two draft copies of the
Mining Plan to the 3rd respondent through vide
Lr.No.PCIL/Mines/H.O./2020-2021 dated 15.02.2021.
o) However, in pursuance of the Amendment Act, 2021,
the 3rd Respondent issued Lr. No. AP/KNL/MP/Lst-146/Hyd
dated 01.04.2021 refusing to process the mining lease
Application re-submitted by the petitioner, stating that,
WP_4961_2022
SN,J
consequent to notification of the Mines and Minerals
(Development & Regulation) Amendment Act2021 which
came in to force on 28.03.2021, the right to obtaining lease
in respect of cases saved under section 10A (2)(b), ofMMDR
Amendment Act, 2015 along with all the pending cases have
now lapsed.
p) The 3rdRespondent has issued a circular 11011/1/ IBM-
M-A-MP/2012-CCOM-Vol-II dated 07.06.2021, subsequent to
the enactment of the MIMDR (Amendment) Act, 2021,
wherein para B(b)(1) contemplates that documents which
are submitted and are in various stages of processing shall
be continued to be processed and disposed as per existing
system of appraisal of Mining Plan Document.
q) Thereafter, the Petitioner company has submitted
representations dated 10.12.2021 and 20.12.2021 requesting
the 3rd respondent to reconsider their impugned order dated
01.04.2021. However, the 3rd respondent failed to consider the
representation. Hence this Writ Petition.
4. The learned counsel appearing on behalf of the
petitioner mainly puts forth the following contentions:
WP_4961_2022
SN,J
i) The 3rd Respondent ought to have seen that as on
15.02.2021, the law applicable to process the mining plans for
approval by the 3rdrespondent is MMDR Amendment Act,
2015 and the Application filed by the petitioner company is in
complete compliance with the same. The Mines and Minerals
(Development and Regulation) Act 2021 came into force w.e.f.
28.03.2021 after being published in the gazette CG-DL-E-
28032021-226207 and therefore, the same cannot have
retrospective effect as such it cannot be applied to the
pending Applications.
ii) The 3rd respondent has erroneously applied the
inapplicable amended proviso to section 10A(2)(b) of the
Mines and Minerals (Development and Regulation)
Amendment Act 2021 to the pending application dated
15.02.2021 and declined to process without assigning any
reasons and approve the mining plan of the petitioner
company.
iii) The 3rd Respondent ought to have considered the circular
R-11011/ЛЛВМ-M-A-MP/2012-CCOM-Vol-II dated 07.06.2021
issued subsequent to the amendment which contemplates that
documents which are submitted and are in various stages of
WP_4961_2022
SN,J
processing shall be continued to be processed and disposed as
per existing system of appraisal of Mining Plan Document and
ought to have been processed since the Application dated
13.07.2000 had been submitted before the commencement of
the Amendment Act 2021 the same is pending for
consideration at the end of the Respondents.
iv) The 3rd Respondent failed to appreciate Section 6 of the
General Clauses Act which protects a right that is accrued
prior to the change of law as that right is a vested right and
cannot be taken away by a subsequent amendment.
v) The 3rd Respondent has erroneously applied the proviso
appended to Section 10A(2)(b) to the Application submitted
by the Petitioner. The 3rd Respondent has failed to appreciate
the golden rule to read the whole section inclusive of proviso,
in such a manner that they mutually throw light on each other
and result in a harmonious construction. A proviso is not a
separate and independent enactment but must be read and
considered in relation to the principal Section to which it is a
proviso. A proviso cannot be used to cut down the language of
the main enactment where such language is clear, or to
exclude the implication what the main enactment clearly
WP_4961_2022
SN,J
states. Therefore, if the interpretation given by the 3rd
Respondent is assumed to be correct, then the proviso
virtually invalidates and nullifies the entire Section 10A(2)(b)
which is illegal, invalid and unconstitutional.
vi) The 3rd Respondent ought to have seen that proviso
appended to Section 10A(2)(b) contemplates for the lapse of
"right" to obtain but not obtaining per se of the prospecting
license followed by a mining lease or a mining lease as the
case may be. In the instant case, the Petitioner has already
accrued the right by virtue of the Lol and subsequent GOs
wherein the Petitioner was considered to be eligible for the
mining lease and in-principle approval was already accorded to
the Petitioner. Therefore, the proviso to Section 10A(2)(b) is
not applicable to the case of the Petitioner. The 3rd
Respondent ought to have seen that the petitioner company
has made huge efforts and investment in prospecting and
identifying the mines and has pursued to get mining lease
relentlessly. Therefore, the erroneous retrospective application
of law to the pending application has subjected the petitioner
company to huge losses and heavy injustice.
WP_4961_2022
SN,J
vii) The 3rd Respondent ought to have seen that procedural
formalities connected with the grant of mining lease also
commenced immediately after the Respondents issued the
letter for demarcation of mining boundaries in furtherance of
Petitioner's substantive rights for grant of mining lease. In this
regard inference may be drawn from Rule 33 of the Mining
Concession Rules 1960 read with Rule 55 of the Minerals
(Other than Atomic and Hydro Carbons Energy Minerals)
Concession Rules, 2016 as it presupposes the grant of mining
lease for commencement of demarcation of mining
boundaries.
viii) The 3rd Respondent ought to have seen that once
substantive rights are created and the Respondent No.2
through its officials having acted in furtherance thereof, cannot
turn around and refuse to process the Mining Plan that too
when the Application is submitted before the commencement
of Amendment Act, 2021 and the delay in approval was solely
attributable to the 3rd Respondent.
ix) The 3rd respondent ought to have seen that the
petitioner has fulfilled all the requisites on its part for grant of
mining lease. The purport of the Amendment Act, 2021 cannot
WP_4961_2022
SN,J
take away the conclusive and vested rights created under the
Amendment Act, 2015. Therefore, the impugned action of the
respondents is arbitrary, illegal and unreasonable.
x) The provisions of the Amendment Act, 2021 would not
apply to the Application submitted by the petitioner and the
petitioner is entitled for grant of mining lease.
xi) The 3rd Respondent ought to have seen that the letter
of intent issued by the State government to obtain mining plan
approved and to obtain mining lease is valid until 11.02.2023
and non- approval of the mining plan by the 3rd respondent,
despite submission of the duly complied with and complete
mining plan by the petitioner company, much before the
enactment of the Amended Act, 2021 is illegal, arbitrary,
harsh, unjust by which the 3rd respondent penalised the
petitioner company for the inordinate delay attributable solely
to the 3rd respondent. The impugned order passed by the 3rd
respondent violates principles of legitimate expectation,
particularly since the petitioner had altered their position by
making huge investments, both in acquiring vast lands and in
updating their plant and machinery, thus denying his lawful
right by the 3rd respondent is in violation of article 14,
WP_4961_2022
SN,J
19(1)(g) and 300A of the Indian Constitution and the same is
liable to be set aside.
5. The 1st respondent and respondents 2 and 3 filed
their respective counter affidavits and also made
submissions.
6. Dealing with identical issue pertaining to Section
10(A)(2)(b) of Mines and Minerals (Development and
Regulations) Act, as amended on 28.03.2021, the
Division Bench of High Court of Karnataka at Bengaluru
vide its detailed order dated 27.05.2022 in W.P.No.1920
of 2021 and batch dealt with various aspects and
observed at paras 35 to 42 as under:
"35. The intention of the legislature not to cover
all cases covered by Section 10A(2)(b) can also be
deduced from sub-clause (d) inserted in Section
10A(2) by the very same amending Act. The said
sub-clause reads as under:
"(d) in cases where right to obtain licence or lease
has lapsed under, clauses (b) and (c), such areas
shall be put up for auction as per the provisions of
this Act:"
The use of the phrase "in cases where right to
obtain licence or lease has lapsed .........such
areas" clearly shows that the right does not lapse
in all cases covered by Section 10A(2)(b) and that
certain cases would be saved from the proviso.
Otherwise, the legislature would have simply
stated that the "areas in cases covered by clause
WP_4961_2022
SN,J
(b) and (c) shall be put up for auction as per the
provisions of this Act :"
36. This brings us to the next logical question as to
which cases would be covered under the term "pending
cases". The answer to the said question is also in the
language of Section 10A(2)(b) which provides that a
person shall have a right for obtaining the mining lease
on satisfaction of the State Government of the
conditions mentioned in clause (i) to (iv). The relevant
extract of the Section reads as under :
"(b) where before the commencement of the
Mines and Minerals (Development and Regulation)
Amendment Act, 2015 a reconnaissance permit or
prospecting license 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 license 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- "
Therefore, where the satisfaction of the State
Government has been arrived at, the State is rendered
functus officio and the right stands crystallized. The
proviso seems to have an effect of lapsing the right to
obtain, which could only be referable to cases where the
satisfaction is not yet/yet to be arrived at and not to
cases where satisfaction is already arrived at by the
State Government.
37. Further the term "lapse" as used in the proviso to
Section 10A(2)(b)is generally used for reverting .of a
right from a party which has failed to fulfill its
obligations or conditions under which such right was
given. The said term "lapse" is also used in Section
4A(4) of the MMDR Act where again the right lapses on
failure of the lessee to start mining operations.
Parliament has employed the said term also in the Land
Acquisition Act, 1894 and the Right to Fair
Compensation and Transparency in Land Acquisition,
WP_4961_2022
SN,J
Rehabilitation and Resettlement Act, 2013 whereunder
on the failure of the statutory authority to compete the
acquisition process within the statutorily prescribed time
period, the acquisition proceedings lapse. The said term
is defined in Black's Law Dictionary (8th edn, 2004) as
under:-
"the termination of a right or privilege because of
failure. to exercise it within some time limit or
because the contingency has occurred or not
occurred"
38. Therefore, keeping in view the aforesaid principles
and the use of specific terms, it is evident that the
legislature was desirous of applying the proviso to only
a certain class of persons within Section 10A(2)(b) viz .,
those who had either till date not completed the
reconnaissance or prospecting operations despite 5
years from 2015, which was the outer limit provided by
the Act under unamended Section 7 or those whose
applications were yet to be processed and the State had
not arrived at the satisfaction. Any other interpretation
would do violence to the language and intention of the
legislature . It would never have been the intention of
the legislature to punish a party who had complied with
the law or to allow the executive to defeat the rights of
parties by delaying performing their duties.
39. We are also persuaded to interpret the proviso as
aforesaid on the well recognized principles of effects of
proviso as propounded in a recent constitutional bench
judgment of the Hon'ble Supreme Court in Indore
Development Authority v. Manoharlal:
"192. A proviso has to be construed as a part of
the clause to which it is appended. A proviso is
added to a principal provision to which it is
attached. It does not enlarge the enactment. In
case the provision is repugnant to the enacting
part, the proviso cannot prevail ............ :
194....
WP_4961_2022
SN,J
R. v. Dibdin {R. v. Dibdin, 1910 P 57 (CA)], held
as under : (P p . 125) "The fallacy of the proposed
method of interpretation is not far to seek. It sins
against the fundamental rule of construction that
a proviso must be considered with relation to the
principal matter to which it stands as a proviso. It
treats it as if it were an independent enacting
clause instead of being dependent on the main
enactment. The courts ... have refused to be led
astray by arguments such as those which have
been addressed to us, which depend solely on
taking words absolutely in their strict literal sense,
disregarding the fundamental consideration that
they are appearing in the proviso."
"198. In keeping with the ratio in the aforesaid
decisions, this Court is of the considered view that
the proviso cannot nullify the provision of Section
24{1){b ) nor can it set at naught the real object
of the enactment, but it can further by providing
higher compensation, thus dealing with matters in
Section 24 (2) ............"
40. If the legislature was desirous of revoking the said
vested rights, the amendment would have been made
to the main provision or the said provision could have
been omitted with retrospective effect. Having not done
so and rather having opted the legislative tool of a
proviso being inserted to the main provision, the well
settled principles of the object and purpose of a proviso
would come into play. The Respondents have also relied
on a large number of judgments with regard to effect of
a proviso, however none of the said judgments support
the view that the proviso can have the effect of
nullifying the main provision itself, as such the present
judgment is not being burdened with the said
judgments which have otherwise been considered by
the constitution bench in Indore Development (supra).
41. As the proviso does not take away vested rights
with retrospective effect, the writ petition which has
been filed by the petitioner claiming that the right under
Section 10A(2)(b) of the Mines and Minerals
WP_4961_2022
SN,J
(Development and Regulation) Act, 1957 as already
fructified and being a vested right, has to be proceeded
with based on the law as it stood then and taken to its
logical conclusion.
42. In view of the aforesaid facts and circumstances,
we are of the considered opinion that the provisos to
Section 10A(2)(b) of the MMDR Act, 1957 as inserted
vide Amendment Act No.16 of 2021 w.e.f. 28.03.2021
are not applicable to the applications, claims etc., of the
petitioners who are entitled to obtain mining leases and
lease deeds from the State Government without
reference to the said amendment or the proviso inserted
thereby.
7. The Apex Court in the judgment reported in
(2001) 5 SCC 664 in Tandon Brothers Vs. State of West
Bengal & Others at para 34 observed as under :
"Governmental action must be based on
utmost good faith, belief and ought to be
supported with reason on the basis of the State of
Law - if the action is otherwise or runs counter to the
same the action cannot be ascribed to be malafide and it
would be a plain exercise of judicial power to
countenance such action and set the same aside for the
purpose of equity, good conscience and justice. Justice
of the situation demands action clothed with bonafide
reason and necessities of the situation in accordance
with the law."
8. The Apex Court in the judgment reported in
(2010) 9 SCC 496 in Kranti Associates Private Limited &
WP_4961_2022
SN,J
Another v. Masood Ahmed Khan & Others at para 47
observed as under :
Para 47 : Summarising the above discussion, this Court
holds:
(a) In India the judicial trend has always been to
record reasons, even in administrative decisions, if such
decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons
in support of its conclusions.
(c) Insistence on recording of reasons is
meant to serve the wider principle of justice that
justice must not only be done it must also appear
to be done as well.
(d) Recording of reasons also operates as a valid
restraint on any * possible arbitrary exercise of judicial
and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been
exercised by the decision-maker on relevant grounds
and by disregarding extraneous considerations.
(f) Reasons have virtually become as
indispensable a component of a decision-making process
as observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review
by superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional governance
is in favour of reasoned decisions based on relevant
WP_4961_2022
SN,J
facts. This is virtually the lifeblood of judicial decision-
making justifying the principle that reason is the soul of
justice.
(i) Judicial or even quasi-judicial opinions these
days can be as different as the judges and authorities
who deliver them. All these decisions serve one common
purpose which is to demonstrate by reason that the
relevant factors have been objectively considered. This
is important for sustaining the litigants' faith in the
justice delivery system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not
candid enough about his/her decision-making process
then it is impossible to know whether the person
deciding is faithful to the doctrine of precedent or to
principles of incrementalism.
(l) Reasons in support of decisions must be
cogent, clear and succinct. A pretence of reasons or
"rubber-stamp reasons" is not to be equated with a valid
decision-making process.
(m) It cannot be doubted that transparency is the
sine qua non of restraint on abuse of judicial powers.
Transparency in decision-making not only makes the
judges and decision-makers less prone to errors but also
makes them subject to broader scrutiny.
WP_4961_2022
SN,J
(n) Since the requirement to record reasons
emanates from the broad doctrine of fairness in
decision-making,
(o) In all common law jurisdictions judgments play
a vital role in setting up precedents for the future.
Therefore, for development of law, requirement of giving
reasons, for the decision is of the essence and is
virtually a part of "due process".
9. The Supreme Court in case of Commissioner of
Police, Bombay Vs. Gordhandas Bhanji reported in
(1951) SCC 1088 observed as under :
"We are clear that the public orders, publicly
made, in exercise of a statutory authority cannot be
construed in the light of explanations subsequently given
by the Officer making the order of what he meant, or of
what was in his mind, or what he intended to do. Public
orders made by public authorities are meant to have
public effect and are intended to effect the acting's and
conduct of those to whom they are addressed and must
be construed objectively with reference to the language
used in the order itself.
10. A bare perusal of the order impugned dated
01.04.2021 VIDE No.AP/KNL/NP/Lst-146/Hyd of the 3rd
respondent indicates that the same is passed without
providing an opportunity of hearing to the petitioner and
WP_4961_2022
SN,J
without assigning any reasons, this Court opines that when
an order affecting rights of an individual is passed, the
individual concerned is entitled for an opportunity of
personal hearing which admittedly did not take place in the
present case nor the order impugned indicates any reasons
except stating that consequent upon notification of Mines
and Minerals (Development and Regulation) Amendment
Act, 2021 on 28.03.2021, the right to obtain mining lease in
respect of cases saved under 10A (2) (b) of MMDR
Amendment Act, 2015 along with all the pending cases are
now lapsed. The principle that justice must not only be
done, but it must eminently appear to be done as well is
equally applicable to quasi judicial proceeding if such a
proceeding has to inspire confidence in the mind of those,
who are subject to it as observed by the Apex Court in
Judgment reported in (2010) 9 SCC 496 in Kranti
Associates (P) Ltd Vs. Masood Ahmed Khan. In the said
judgment at para 47 certain principles had been
formulated and set out as under :
"47 a. In India the judicial trend has always been to
record reasons, even in administrative decisions, if such
decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons
in support of its conclusions.
WP_4961_2022
SN,J
c. Insistence on recording of reasons is meant to
serve the wider principle of justice that justice
must not only be done it must also appear to be
done as well.
d. Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of judicial
and quasi-judicial or even administrative power.
e. Reasons reassure that discretion has been exercised
by the decision maker on relevant grounds and by
disregarding extraneous considerations.
f. Reasons have virtually become as indispensable a
component of a decision making process as observing
principles of natural justice by judicial, quasi-judicial
and even by administrative bodies.
g. Reasons facilitate the process of judicial review by
superior Courts.
h. The ongoing judicial trend in all countries committed
to rule of law and constitutional governance is in favour
of reasoned decisions based on relevant facts. This is
virtually the life blood of judicial decision making
justifying the principle that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can
be as different as the judges and authorities who deliver
them. All these decisions serve one common purpose
which is to demonstrate by reason that the relevant
factors have been objectively considered. This is
important for sustaining the litigants' faith in the justice
delivery system.
j. Insistence on reason is a requirement for both judicial
accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid
enough about his/her decision making process then it is
impossible to know whether the person deciding is
faithful to the doctrine of precedent or to principles of
incrementalism.
WP_4961_2022
SN,J
l. Reasons in support of decisions must be cogent, clear
and succinct. A pretence of reasons or `rubber-stamp
reasons' is not to be equated with a valid decision
making process.
m. It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers.
Transparency in decision making not only makes the
judges and decision makers less prone to errors but also
makes them subject to broader scrutiny. (See David
Shapiro in Defence of Judicial Candor (1987) 100
Harward Law Review 731-737).
n. Since the requirement to record reasons emanates
from the broad doctrine of fairness in decision making,
the said requirement is now virtually a component of
human rights and was considered part of Strasbourg
Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29
and Anya vs. University of Oxford, 2001 EWCA Civ 405,
wherein the Court referred to Article 6 of European
Convention of Human Rights which requires, "adequate
and intelligent reasons must be given for judicial
decisions".
o. In all common law jurisdictions judgments play a vital
role in setting up precedents for the future. Therefore,
for development of law, requirement of giving reasons
for the decision is of the essence and is virtually a part
of "Due Process".
11. This Court taking into consideration the aforesaid
facts and circumstances of the case and without going
into the merits of the rival contentions put forth by
learned counsel appearing on behalf of the petitioner
and the respondents, and duly taking into consideration
the view taken by the Apex Court in the judgments
WP_4961_2022
SN,J
(referred to and extracted above) and again enlisted
hereunder:-
1. The Apex Court judgment in Tandon Brothers v State
of West Bengal and others reported in (2001) 5 SCC
664.
2. The Apex Court judgment in Kranti Associates
Private Limited and another v Masood Ahmed Khan and
others reported in (2010) 9 SCC 496.
3. The Supreme Court judgment in Commissioner of
Police, Bombay v Gordhandas Bhanji reported in (1951)
SCC 1088.
Further duly considering the Division Bench order dated
27.05.2022 of High of Karnataka at Bengaluru in
W.P.No.1920 of 2021 and batch passed under identical
circumstances the present writ petition is disposed off
directing the 3rd respondent to reconsider the order
No.AP/KNL/MP/ Lst-146/Hyd dated 01.04.2021 of the
3rd respondent refusing to process mining lease
application submitted by the petitioner company dated
15.02.2021 in respect of Kowlapalli limestone mine
over an extent of 556.938 Hectares in Survey No.124
and 152 of Kowlapalli Village, Peapully Mandal, Kurnool
District, Andhra Pradesh, under Section 10 A (2)(b) of
the Mines and Minerals (Development & Regulation)
WP_4961_2022
SN,J
Amendment Act, 2021 which came into force on
28.03.2021 and further re-consider the request of the
petitioner to process petitioner's mining lease
application dated 15.02.2022 in accordance to MMDR
Amendment Act, 2015, in accordance to law in
conformity with principles of natural justice by giving
opportunity of personal hearing to the petitioner duly
taking into consideration the view taken by the Division
Bench of High Court of Karnataka at Banguluru vide its
detailed order dated 27.05.2022 in W.P.No.1920 of
2021 and batch, which dealt with an identical issue as
in the present writ petition and pass appropriate
reasoned order within a period of two weeks from the
date of receipt of a copy of the order and duly
communicate the decision to the petitioner. However,
there shall be no order as to costs.
12. Enclose copy of order dated 27.05.2022 passed by
the Division Bench of High of Karnataka at Bengaluru in
W.P.No.1920 of 2021 and batch.
WP_4961_2022
SN,J
Miscellaneous petitions, if any, pending shall stand
closed.
__________________
SUREPALLI NANDA, J
Dated: 26.02.2024
Note: L.R. copy to be marked
b/o
kvrm
