TMI Blog1977 (11) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... cate from the District Deputy Registrar (Cooperative Societies), Nagpur, about the working of society. However, it is an admitted position that the said application of the society was rejected vide the order dated 21st of July 1967. After the said order of rejection was passed, vide order dated 9th August 1967, the Collector made the said area available to the petitioner excluding 150 feet distance from the river bed and 30 feet distance from the road and asked the petitioner if he was willing to proceed further with his mining lease application. He was also directed to furnish correct plans for the said purpose and it was also made clear that in case the reply of the petitioner was not received by the 25th of August 1967, it would be presumed that he was not willing to proceed further, In pursuance of this letter from the Collector, according to the petitioner, he submitted six correct copies of the plans and expressed in writing his willingness to take the mining lease vide his writing dated 23rd of August 1967. 3. According to the petitioner on 25th Sept. 1967 Paliwal obtained the solvency certificate of the value of ₹ 4,000/- on the basis of his personal properties, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed deed of mining lease embossed with the proper stamp from the Nagpur Treasury without prejudice to his claim that the mining lease should have been for period of 10 years and with his own signature on it he submitted the papers along with the covering letter to the Collector dated 28-12-1970. 8. However, it appears that in the meantime the respondent No. 1 society approached the State Government by filing an appeal under R. 33 of the Maharashtra Minor Mineral Extraction (Vidarbha Region) Rules, 1966 (hereinafter referred to as the Extraction Rules). The State Government granted an ad interim stay of the operation of the order of the Collector and, therefore, obviously the mining lease could not be executed. Ultimately the matter was heard by the Hon'ble Minister for State (Revenue) and after hearing both the parties the State Government vide its order dated 6th of Dec. 1971 allowed the appeal filed by the respondent-Society and set aside the order of the Collector dated 24th Dec. 1970. The State Government further directed the Collector, Nagpur to consider the request of the Society on merits. In substance, therefore, the State Government again remitted back the matter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rules. He further contended that the application itself was filed by the society in a different name. The name of the registered society bearing Registration No. 308 is Sarvodaya Vit-Kavelu Kum-bharkam Sahakari Audyogic Utpadak Sanstha Limited. The application was filed by the respondent-Society in the name of the Sarvodaya Vit-Kavelu Kum-bharkam Sahakari Sanstha Limited. Thus according to him, the words Audyogic Utpadak were missing in the description of the society as found in the application for mining lease. Shri Ghate further submitted that this clearly indicates that the applicant who had filed the application for mining lease was a different and distinct entity and was not a society which was dulv registered under the Co-operative Societies Act. He has further contended before us that in view of the provisions of Section 36 as well as Section 145 of the Maharashtra Co-operative Societies Act, the application filed by the respondent-society was neither proper nor legal. Therefore, according to Shri Ghate the application filed by the said society was not itself maintainable nor could it be considered by the Collector in view of the provisions of Rules 4 and 5 of the Extrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was obviously illegal. According to the respondents in appeal the Hon'ble Minister heard the counsel for both the sides and after considering the various contentions raised before him, rightly set aside the order passed by the Collector. According to the respondents the matter was not finally decided by the State Government but it has directed the Collector. Nagpur to consider the request of the society on merits. So far as the mistake in the name of the society is concerned, it was contended by the respondents that the said mistake was not material. By virtue of this insignificant mistake, there was no difficulty in identifying the real applicant. The society is the one and the same and there is no other society in the field having the same name and registration number. It is further contended on behalf of the society that this is further clear from the fact that on an earlier occasion the petitioner had not raised such an objection at any time. Further the society is duly registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 and bears a registration certificate. In this view of the matter, according to the respondents the application was filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as possible the situation, boundaries and area of the land in respect of which the mining lease is required. (c) the minor mineral or minerals which the applicant intends to extract; (d) the purpose for which the extracted minor minerals are to be used. (e) the period for which the mining lease is required. (f) the areas and minor minerals within the Vidarbha Region of State in respect of which the applicant or any person joint in interest with ton already holds a mining least. Explanation -- A map or plan referred to in item (b) shall give sufficient information to enable identification of the area in respect of which the lease is required. (2) Every application shall be accompained by a fee of ₹ 25/- and by certified copies of the relevant extracts of the Record of Rights pertaining to the lands in respect of which the mining lease is applied for and also by a certificate of financial standing of the applicant from a revenue officer not below the rank of a Tahsildar or from any banking company in this State as defined in the Banking Companies Act, 1959, or a co-operative bank registered or deemed to be registered under the Maharashtra Co-operative Societie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal provided by Rule 33. It is contended by Shri Ghate that in Rule 33 it is nowhere laid down that the appellate Court can interfere with the discretion of the Collector. Rule 33 does not provide for any guidelines as to on what grounds it is open to the appellate authority to interfere with the order passed by the Collector either sanctioning or refusing the grant. In substance, therefore, it is contended by Shri Ghate that while exercising its appellate power it is not open-for the State Government to interfere with the discretion exercised by the Collector. In our opinion, this will not be the correct reading of Rule 33. By Rule 33 an appeal is provided to the Government. 18. As is well-settled an appeal is a creature of statute and the powers and jurisdiction of the appellate court must be circumscribed by the words of the statute itself. At the same time a court of appeal is a 'Court of error' and its normal function is to correct the decision appealed from and its jurisdiction should be co-extensive with that of the trial Court. It cannot, and ought not, to do something which the trial Court was not competent to do. There does not seem to be any fetter to its po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s engaged in the manufacture of bricks and pottery articles, Government was pleased to direct that preference should be given to co-operative societies consisting of artisans only, over individuals or individual artisans while granting lease of the Government land for excavating clay for brick manufacture or pottery works. It further appears from the record that on an earlier occasion the Collector 'has granted a mining lease in favour of the respondent-society mechanically relying upon these executive instructions issued by the Government. It further appears that even the appellate authority had admitted in its return that it had instructed the Collector to prefer the cooperative society to individual while granting mining lease. Therefore, in the said decision this Court held that the Collector had acted only in accordance with the declared general policy of the State Government as incorporated in the instructions and I had not exercised his jurisdiction independently as contemplated by Rules 4 and 5 of the Extraction Rules. In this context the Division Bench observed as under: The facts of the present case, however, go much further in so far as there is not merely a comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was remitted back to the Collector, before him there were two applications in the field, namely, one filed by the petitioner Tiwari and another by the respondent co-operative society. Therefore, it was the duty of the Collector to have considered both these applications on merits ignoring the directions given by Government in its order dated 22nd of Sept. 1962. Instead of doing this, the Collector thinking that it has been directed by the High Court to grant mining lease to the petitioner has passed the impugned order granting mining lease in favour of the petitioner Tiwari. In substance, therefore, the Collector has not at all considered the application filed by the respondent-Society and has also not applied his mind independently to the application filed by the petitioner Tiwari. In this view of the matter, in our opinion, the learned appellate authority, namely, the State Government was right in coming to the conclusion that the order passed by the Collector was not in accordance with law as he had not exercised the discretion vested in him under Rules 4 and 5 after considering the applications before him in that behalf. It is further clear from the order passed by the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s drawn our attention towards the allegation made in the petition itself whereby it was admitted by the petitioner that the so-called society with a view to cure the detect in its application dated 19-10-1967 submitted a solvency certificate on or about 12th August 1969, obviously before 24-12-1970 when the Collector passed an order granting mining lease in favour of the petitioner Tiwari. 25. It is not necessary to deal with this question in detail in view of the latest decision of the Supreme Court in Krishna Kumar Mediratta v. Phulchand Agarwala . In that case the Rule which fell for consideration before the Supreme Court was Rule 9 (2) of the Mineral Concessions Rules, 1960 read with Section 19 of the Mines and Minerals (Regulation and Development) Act, 1957. In the present case also Shri Ghate is strongly relying upon the provisions of Section 19 of the Mines and Minerals Regulation and Development) Act, 1957. According to Shri Ghate Rule 4 (2) of the Extraction Rules is mandatory and any application which is not in conformity with the said rules is liable to be dismissed under Section 19 of the said Act. After making a detailed reference to Rule 9 and Section 19 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly submitted a solvency certificate on or before 12th August 1969, i.e. before the matter was considered by the Collector. In this view of the matter, in our opinion, having regard to the facts and circumstances of the present case, it will have to be held that there was a substantial compliance with the provisions of Rule 4 (2) of the Rules so far as the respondent-Society is concerned. Even otherwise it appears from the record that the application filed by the society was not rejected by the Collector on the ground that it was not accompanied by the solvency certificate. In this view of the matter, in our opinion, there is no substance in this contention also. 27. It was then contended by Shri Ghate that by virtue of Section 36 of the Maharashtra Co-operative Societies Act, 1960, a society which is registered under the said Act is a body corporate by the name under which it is so registered. The present application was not named by the society in the said name. On the other hand the word 'Udyogic Utpadak' and 'Limited' were wholly deleted by the said society while filing the application for grant of lease. Therefore, according to Shri Ghate the application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of fact, by virtue of the provisions of Section 14 of the Mines and Minerals (Regulation and Development) Act, 1957, the provisions of Sections 4 to 13 (inclusive) will not apply to mining leases or other mineral concessions in respect of minor minerals. It is not necessary to deal with the question in detail in view of the decision of this Court in Ramlal Lalchand v. H.G. Dange . It is quite obvious that the provisions related to the priority which governed the major minerals and not to the minor mineral like clay. 29. It was then contended by Shri Ghate that the appellate authority, namely, the State Government has practically given a go bye to the earlier decision of the Division Bench and has again directed the Collector to consider the application of the society on the basis of its avowed policy to grant leases to the co-operative societies. According to Shri Ghate, this policy of the Government has no authority of law. Shri Ghate had further contended that it is well-settled that all executive actions of the Government must have some authority of law and as there is nothing in the Rule to indicate that while granting mining leases preference should be given to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptember 1962 which dealt with the co-operative societies consisting of artisans only. 31. Further from the judgment of the Division Bench itself it is quite clear that other things being equal, preference could be given to a co-operative society. This is obviously in conformity with the directive principles of the State Policy as incorporated in Part IV of the Constitution. It is no doubt true that the provisions contained in this Part of the Constitution are not enforceable by any Court, but the principles laid down therein are nevertheless fundamental in the governance of the country and it is the bounden duty of the State to apply these principles. Therefore, for adjudicating' upon the validity of an executive action Court can legitimately look to the directive principles for the light and guidance or at any rate to seek assurance. In any Case these directive principles can serve as an instrument of instructions to the Legislature and the Executive. 32. In this context, reference could be made to a decision of the Supreme Court in Mumbai Kamgar Sabha v. Abdulbhai and particularly to the following observations in para. 29 of the said judgment: We have to bring in s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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