1. With consent of the parties this case is taken up through Video Conferencing.
2. The instant writ application has been preferred for following reliefs:
(a) For issuance of an appropriate writ, order or direction, including a writ in the nature of certiorari, for quashing the final order No.13/2020 dated 7.7.2020 (Annexure-21 to the writ petition) passed in Revision Application No.06/05/2019/RC-I by the Revisional Authority whereby and whereunder the revision application challenging the order contained in Memo No.28/M dated 04.01.2019 passed by the State Government terminating the mining lease of the petitioner over an area of 239.99 hectare in Mauja Karampada (Reserve Forest), District West Singhbhum has been dismissed.
(b) For issuance of a further appropriate writ, order or direction, including a writ in the nature of certiorari, for quashing the order contained in Memo No.28/M dated 04.01.2019 (Annexure-17) issued under the signature of the Joint Secretary, Department of Mines and Geology, Government of Jharkhand-respondent No.3, whereby and whereunder the mining lease of the petitioner over an area of 239.99 hectare in Mauja Karampada (Reserve Forest), District West Singhbhum has been terminated.
(c) For a further writ, order or direction commanding upon the respondents to forthwith allow the petitioner to operate its mines by issuing Transit Permit and Transit Challans as required in law.
(d) For any other relief for which the petitioner is legally entitled in the facts and circumstances of the case.
3. The relevant facts as disclosed in the instant writ application are that the petitioner is a partnership firm, registered under the provisions of Partnership Act, 1932. A mining lease over an area of 233.99 Hectare in Karampada Reserve Forest of District West Singhbhum was granted to the petitioner with effect from 10.07.1972 for a period of 30 years. Soon after the lease was executed, the petitioner had commenced mining operation. The first application for renewal of the mining lease of the petitioner was submitted on 09.07.2001 in terms of Rule 24A(1) of the Mineral Concession Rules, 1960, which remained pending till the Mines and Minerals (Development & Regulation) Amendment Act, 2015 was promulgated.
Upon coming into force of the MMDR Amendment Act, 2015, by virtue of Sections 8A(3) and 8A(6) of the said Act the mining lease of the petitioner stood extended up to 09.07.2022 and a supplementary lease deed was executed between the State and the petitioner on 28.03.2017.
While the application for surrender of 69.721 hectare of land was pending before the State Government, the petitioner approached this Court by filling a writ petition, being W.P.(C) No.3392 of 2017 which was disposed of vide order dated 11.07.2017 by directing the Secretary, Department of Mines and Geology, Government of Jharkhand to dispose of the application for surrender of 69.721 hectare of forest land submitted by the petitioner within four weeks from passing of the order. However, no letter was issued to the petitioner, communicating that the area of 69.721 hectare of forest land stands surrendered to the State Government by the petitioner.
During pendency of the surrender application the District Mining Officer, Chaibasa came up with a stand that the petitioner has not paid NPV for entire forest land. Thereafter petitioner deposited a sum of Rs.8,54,20,193/- towards NPV.
In the meantime on 08.12.2016 a notice was issued to the petitioner in terms to Rule 12(10) of the Minerals Concessions Rules, 2016 (hereinafter to be referred as MC Rules, 2016). By the said notice certain irregularities/breaches of the terms and conditions of the lease deed were alleged against the petitioner and the petitioner was called upon to submit reply. Thereafter, the petitioner filed his show-cause replies dated 31.01.2017 and 08.02.2017. On the basis thereof, the Member of Board of Revenue heard the petitioner and thereafter an order dated 04.01.2019 (Annexure-17) was passed by State Government in exercise of powers under Rule 12(10) of the MC Rules, 2016, terminating the mining lease of the petitioner prematurely for violation of some of the terms and conditions of the lease deed.
Thereafter the petitioner had challenged the aforesaid order dated 04.01.2019 before the Central Government in its statutory revisional jurisdiction and vide order dated 07.07.2020 (Annexure-21) the said revision application was dismissed. Thereafter, the petitioner has filed the instant writ application.
4. Mr. Navniti Prasad Singh, learned senior counsel for the petitioner submits that the impugned order is bad in law, inasmuch as, the same has been passed without giving any reasons and without considering any grounds given in the reply filed by the petitioner (Annexure-13 & 13/1) to the show-cause notice dated 08.12.2016 issued to the petitioner by the District Mining Officer and also the written submissions filed before the Member, Board of Revenue (Annexure-15).
He further submits that from plain reading of the impugned order dated 04.01.2019 (Annexure-17) it would transpire that this order has been passed relying upon the report of Member, Board of Revenue dated 29.08.2018 which itself is not conclusive.
Mr. Singh further draws attention of this Court towards the finding part of the record of hearing held on 9th August 2018 by the Member, Board of Revenue and submits that at the end of each finding/recommendation; it has been stated “the charges prima-facie appears to be established”. Relying upon the aforesaid finding/recommendation of the Member, Board of Revenue he contended that the finding of Board of Revenue cannot be considered as a conclusive finding rather the language itself speaks about prima facie case. In this view of the matter passing of the impugned order (Annexure-17) without considering the reply to show-cause notice is nonest in the eye of law.
Learned senior counsel lastly submits that he is not arguing on merits of the case rather confines his argument only on the question that the case may be remitted back to the competent authority to pass a fresh order after discussing the grounds taken by the petitioner in his reply to the show-cause notice (Annexure-13 & 13/1) and also the written submission filed before the Board of Revenue (Annexure-15).
5. Mr. Rajiv Ranjan, learned Advocate General vehemently opposed the contention of the petitioner and submits that as per Rule 12(10) of the MC Rules, 2016, no show-cause notice is required to be given to the lessee; however, only to comply the principals of natural justice; notice was issued to the petitioner.
Learned Advocate General further controverted the argument of learned sr. counsel for the petitioner with regards to findings/recommendations of Board of Revenue and submits that though in the concluding portion it has been stated “charges prima-facie appears to be established” however, by looking to the entire finding it would transpire that the Member, Board of Revenue has considered each and every aspect of the matter and given its opinion and based upon the said opinion the impugned order has been passed (Annexure-17). As, such, only on the technical ground that reply to the show-cause notice has not been considered and discussed in detail it should not be held that the impugned order is a non-speaking or non reasoned order; rather the impugned order has given point wise reasons for cancelling the lease.
6. Having heard learned counsel for the parties and after going through the documents available on record, it appears that on 08.02.2016 a show-cause notice was issued to this petitioner under the MC Rules, 2016 and the petitioner has duly replied to it stating several reasons and containing its claim for continuation of lease etc. The petitioner further filed a written submission before the Member, Board of Revenue after he was called for hearing of the case before the authority.
From record it further transpires that though a detailed reply has been filed by the petitioner; however from the impugned order it does not transpires that the competent authority has taken note of the reply to the show-cause notice.
7. It further transpires that the impugned order dated 04.01.2019 has been passed relying upon the recommendation/opinion of the Member, Board of Revenue. From bare perusal of the record of hearing of the Board of Revenue it transpires that at the bottom of the finding/recommendation for few charges; the Member, Board of Revenue has opined that “the charges prima-facie appears to be established”. Further, for one charge it has been held that “this charge will hold only if this is indeed the case” Thus, there would not be any exaggeration in holding that the charges have also not been conclusively proved even by the Member, Board of Revenue. It is a settled principle that prima facie opinion or recommendation is basically an opinion based upon a cursory view which in no case can be said to be conclusive in nature.
8. At this stage it is necessary to consider the argument of the learned Advocate General that as per Rule 12(10) of the MC Rules, 2016, no show-cause notice is required to be given to the lessee before termination of lease. It is true that under the Rule, no second show-cause is necessary for cancelling the lease agreement. However, issuance of Show-Cause Notice in the instant case was under M.C. Rules, 2016; and once a show-cause notice has been issued and duly replied by the lessee; then principles of Natural Justice should have been followed in true letter and spirit and the reply filed by the petitioner should have been duly considered and discussed in the impugned order.
9. It further transpires from the Revision Order dated 07.07.2020 that the Revisional Authority while passing the order did the same mistake and did not consider the submissions of the petitioner before it. As such, the same also suffers from infirmity.
10. In the case of Uma Charan Vs. State of Madhya Pradesh and Another reported in (1981) 4 SCC 102 the Hon’ble Apex Court has held at paragraph 8 as under:-
“8. Except for the words “in preference to those selected” the ground just above set out is identical with the ground given by the Selection Committee in the case of the appellant. Rejecting this ground as being no statement of reasons within the meaning of sub-regulation (5) of Regulation 5, Mathew, J., speaking for the Court, observed: (SCC p. 853, paras 27 and 28)
“We next turn to the provisions of Regulation 5(5) imposing a mandatory duty upon the Selection Committee to record ‘its reasons for the proposed supersession’. We find considerable force in the submission made on behalf of the respondents that the ‘rubber-stamp’ reason given mechanically for the supersession of each officer does not amount to ‘reasons for the proposed supersession’. The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment ‘at this stage in preference to those selected’.
In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation 5(5) were not complied with.” Emphasis supplied
Further in the case of Mahindra & Mahindra Ltd. Vs. Union of India & Anr. reported in (1979) 2 SCC 529 the Hon’ble Apex Court has held at paragraph 24 as under:-
“24. There is also another infirmity invalidating the order dated May 14, 1976. We have already pointed out, and that is clear from the decision of this Court in Telco case, that in an inquiry under Section 37 the Commission has first to be satisfied that the trade practice complained of in the application is a restrictive trade practice within the meaning of that expression as defined in Section 2(o) and it is only after the Commission is so satisfied, that it can proceed to consider whether any of the “gateways” provided in Section 38(1) exists so that the trade practice, though found restrictive, is deemed not to be prejudicial to the public interest and if no such “gateways” are established, then only it can proceed to make an order directing that the trade practice complained of shall be discontinued or shall not be repeated. There are thus two conditions precedent which must be satisfied before a cease and desist order can be made by the Commission in regard to any trade practice complained before it. One is that the Commission must find that the trade practice complained of is a restrictive trade practice and the other is that where such finding is reached, the Commission must further be satisfied that none of the gateways pleaded in answer to the complaint exists. Here in the present case the appellant did not appear at the hearing of the inquiry and no “gateways” were pleaded by it in the manner provided in the Regulations and hence the question of the Commission arriving at a satisfaction in regard to the “gateways” did not arise. But the Commission was certainly required to be satisfied that the trade practices complained of by the Registrar were restrictive trade practices before it could validly make a cease and desist order. The order dated May 14, 1976 did not contain any discussion or recital showing that the Commission had reached the requisite satisfaction in regard to the offending trade practices. But we can legitimately presume that the Commission must have applied its mind to the offending clauses of the distributorship agreement and come to the conclusion that the trade practices referred to in those clauses were restrictive trade practices before it made the order dated May 14, 1976. There is in fact inherent evidence to show that the Commission did apply its mind to the clauses impugned in the application of the Registrar, because it struck down only a few out of those clauses and did not invalidate the rest. This circumstance clearly shows that the Commission considered with reference to each impugned clause whether it related to restrictive trade practice and made the order dated May 14, 1976 only in respect of those clauses where it was satisfied that the trade practices were restrictive. The charge that the order dated May 14, 1976 suffered from non-application of mind on the part of the Commission cannot, therefore, be sustained. But the order dated May 14, 1976 was clearly bad inasmuch as it did not disclose the reasons which weighed with the Commission in directing the appellant to cease and desist from the trade practices set out in the order. The order dated May 14, 1976 was a non-speaking order. It consisted merely of bald directions given by the Commission and did not set out any reasons whatsoever why the Commission had decided to issue those directions. It had a sphynx-like face, which goes ill with the judicial process. It is true that the order dated May 14, 1976 was an ex parte order, but the ex parte character of the order did not absolve the Commission from the obligation to give reasons in support of the order. Even though the order dated May 14, 1976 was ex parte, the appellant would have been entitled to prefer an appeal against it under Section 55 and it is difficult to see how the appellant could have possibly attacked the order in the appeal, when the order did not disclose the reasons on which it was based. It is now settled l
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aw that where an authority makes an order in exercise of a quasi judicial function, it must record its reasons in support of the order it makes. Every quasi judicial order must be supported by reasons. That is the minimum requirement of law laid down by a long line of decisions of this Court ending with N.M. Desai v. Testeels Ltd. and Siemens Engineering and Manufacturing Co. v. Union of India. The order dated May 14, 1976 was, therefore, clearly vitiated by an error of law apparent on the face of the record inasmuch as it contained only the final and operative order made by the Commission and did not record any reasons whatsoever in support of it and the appellant was, in the circumstances, entitled to claim that the Order should be revoked by the Commission.” Emphasis supplied 11. In view of the above discussions and the judicial pronouncements, especially the fact that the impugned order does not discuss the grounds taken by the petitioner in its reply to the show-cause notice; without going into merits of the case, the instant writ application is partly allowed and the impugned order dated 04.01.2019 (Annexure-17) and the consequential order dated 07.07.2020 (Annexure-21) are hereby quashed and set aside. The matter is remitted back to the competent authority-Respondent No.3 to pass a fresh order taking into consideration the grounds taken by the petitioner in its show-cause reply (Annexure-13 & 13/1) and also the written submissions filed before the Member, Board of Revenue (Annexure-15). 12. It goes without saying that since the period of lease is going to expire in the month of July, 2022; as such the competent authority is directed to pass a fresh order within a period of 12 weeks from the date of receipt/production of copy of this order. 13. With the aforesaid observations and directions the instant writ application stands disposed of.