TMI Blog2008 (5) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... e case are that the Petitioner filed an application on 29.10.1991 for an area which consists of 224.20 hectares for a Prospecting Licence under the Act and Rules. The Petitioner's case is that though his application was free from any defect, the same was not processed for a long time by the State Government disregarding the mandatory statutory provisions. It was also argued that the State of Orissa took a decision to grant the Prospecting Licence for 85 hectares to the Petitioner on or about 15.9.1998. That decision was submitted to the Central Government for approval and that decision of the State of Orissa in favour of the Petitioner was approved by the Chief Minister. But the said decision of the State of Orissa was recalled by the note dated 30.5.2001 of the Additional Secretary to Government of Orissa without prior approval of the Chief Minister. On the basis of that note, Government of India, Ministry of Mines returned the proposal by its communication dated 10.7.2001. It was argued that this was done to favour opposite party No. 4 and that was done under Section 11(5) of the Act. Further case of the Petitioner is that the area for which recommendation has been made in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the State Government dated 19.12.2006 may be treated as a revisional application. Learned Advocate General submits that the copy of the comments of the State Government will be made available to the learned Counsel for the Petitioner by tomorrow. The Petitioner will file its rejoinder within three weeks from the date of receipt of such comments. The Central Government should find its way to hear and dispose of the controversy early by giving all the parties in this proceeding an opportunity of personal hearing and also by giving each one of them the right of raising all points of law which are available on record. Since the matter is to be decided by the Central Government under the statutory provision, we do not express any opinion on the rival claims of the parties. This Court will appreciate if the Central Government decides this controversy as early as possible, preferably within a period of three months from the date of service of this order upon the Central Government. It is open to any of the parties to serve a copy of this order on the Central Government. 6. The Revisional Authority, opposite party No. 2 disposed of the Revision application by its order dated 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appearing before the Secretary pursuant to such notice, gave a representation dated 12.11.2007 which is at Annexure-4. In that representation, various contentions have been raised by the Petitioner and one of the contentions is that the Secretary, who issued the notice under Rule 12 and 26 of the said Rules, is incompetent to hear. Apart from that bias and predetermination of mind has also been alleged. This writ petition has thus been filed by the Petitioner on 28.11.2007 substantially praying for quashing of Annexure-2 referred to hereinabove. 8. Apart from the aforesaid contention, it was also urged that the Petitioner has a preferential right under Section 11 of the said Act inasmuch as the Petitioner claims to have made an application on 29.10.2001 for a prospective licence. It is however not disputed that the Petitioner made an application in the notified area. In fact, all the applications which were made, were in the notified area. The said notification dated 23.8.1991 has been annexed in the counter affidavit filed by the State Government. The relevant recitals in the said notification is as follows: The State Government have now decided to dereserve the above min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) shall be required to be issued: Provided also that where an area held under a reconnaissance permit or a prospecting licence, as the case may be, is granted in terms of Sub-section (1) of Section 11, no notification under Clause (ii) shall be required to be issued. (2) The Central Government may, for reasons to be recorded in writing, relax the provisions of Sub-rule (1) in any special case. 10. Now the question is whether the Petitioner who has applied in the notified area is entitled to any preferential right under Section 11 of the said Act. 11. Relying on his claim for preferential right, the Petitioner has assailed the impugned order at Annexure-2 wherein there is a direction for simultaneous consideration of all the applications. It was therefore argued that the Central Government committed an error by directing simultaneous consideration of all applications with the application of the Petitioner. 12. For a better appreciation of the aforesaid contention of the Petitioner, this Court sets out herein below the provision of Section 11 as it stood prior to its amendment from 18/20.12.1999 by an Amendment Act No. 38 of 1999. Admittedly, Section 11(1) is not rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where an area is available for grant of reconnaissance permit, prospecting licence or mining lease, as the case may be, and the State Government has invited applications by notification in the official gazette for grant of such permit, licence or lease, all the applications received during the period specified in such notification and the applications which had been received prior to the publication of such notification in respect of the lands within such area and had not been disposed of, shall be deemed to have been received on the same day, the State Government for the purposes of assigning priority under this Sub-section. Provided further that where any such application are received on the same day, the State Government, after taking into consideration the matter specified in Sub-section (3), may grant the reconnaissance permit, prospecting licence or mining lease, as the case may be, to such one of the applicants as it may deem fit. 11(3). The matters referred to in Sub-section (2) are the following: (a) any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 15. The learned Judges answered that question in paragraph 13 at page 720 of the report; which is as follows: It is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. That being the clear position in law, the Petitioner cannot claim that his application has to be disposed of today on the basis of his alleged preferential right under the un-amended provision of Section 11(2). 16. It may be noted herein t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory provisions, learned Counsel urged that in this matter the State has filed a counter affidavit. From Annexure-1 to the said counter affidavit dated 18.12.2007 it appears that the Petitioner vide notice dated 21.9.2007 under Rule 12(1) of the said Rules was asked to appear before the Secretary to the Government, Department of Steel and Mines on 12.11.2007 for personal hearing to state his case. Learned Counsel has also drawn the attention of the Court to an office Order dated 5.9.2007 passed by the Government of Orissa in the Department of Steel and Mines to the extent that Government have constituted a Committee to determine relative merits of different applicants based on documents as well as personal hearing. Such Committee consists of as follows: 1. Commissioner-cum-Secretary Steel Mines Department Chairman 2. Special Secretary/ Joint Secretary Member 3. Director of Mines, Orissa Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the hearing by a Committee headed by the Commissioner-cum-Secretary of the Department of Steel and Mines is hearing by the State Government itself. 22. The learned Counsel for the State pointed out that under Rule 12 of the said Rules, the State Government has the power to refuse the grant of an application for a prospecting licence and also its power of refusing the renewal of the prospecting licence for the whole or part of the area applied for. Similarly under Rule 26 the State Government has the power to refuse an application for grant and also the power to refuse renewal of a mining lease. But in both the cases the State Government has to exercise its power after giving the applicant an opportunity of being heard and in support of the order the State Government has to record reasons in writing which has also to be communicated to the applicant. It was urged that in exercise of that power State has asked the Petitioner to appear before it for personal hearing under Rule 12. 23. This Court finds that the Rules of Business which have been framed in exercise of powers conferred under Clause (3) of Article 166 of the Constitution of India have been referred to by both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Minister. But the Chief Minister does not give any hearing. Therefore, the person who hears does not decide. 27. In support of the aforesaid contentions, learned Counsel relied on an office Order dated 12.11.2001 issued by the Government of Orissa in the Department of Steel and Mines. The said order is to the following effect: Government of Orissa Department of Steel Mines No. 12674/SM.Bhubaneswar, the 12.11.01. OE. Misc. 38/2001 OFFICE ORDER In supersession to this Department Office Order No. 7295/MG. dated 6.6.85, No. 13885/MG. Dt. 2.12.86 and No. 1461/MG. Dt. 28.1.87, No. 10867/24.9.90 and in pursuance of Clause (2) of instruction-3 of the instruction issued under Rule 14 of the Orissa Government Rules of Business made under Article 166 of the Constitution of India, the Chief Minister has been pleased to order that cases in the Department of Steel Mines will be disposed of at different levels as indicated in detail in the statement annexed hereto. Sd. S.B. Padhi, Under Secretary to Government. Along with the said Office Order there is a list of cases which are to be disposed of by the Chief Minister. Item No. 3 indicates the matters relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Anr. reported in AIR 1987 SC 120 and particularly referred to paragraph 10 of the said judgment in order to contend that the Rules of Business cannot override the statutory rules or provisions. In that judgment in paragraph 10 learned Judge held that the Secretary of the Home Department may be the head of the Home Department, but he cannot become the head of the Police Department contrary to Rule 1.2 of the Punjab Police Rules, 1934. Under Rule 1.2 of the said Rules, Inspector General of Police is the head of the Police Department. In the instant case, we are not concerned with any such situation. It is nobody's case that the Secretary of the Department while acting on behalf of the State Government is acting contrary to any Rules or provisions of the said Rules or even the Rules of Business. 30. Reference was also made by the learned Counsel for the opposite party No. 5 to the decision of the Hon'ble Supreme Court in the case of State of Goa and Ors. v. A.H. Jaffar and sons reported in (1996) 7 SCC 79 in order to contend that from the facts recorded in the said judgment it will appear that an application for lease of mining mineral was heard by the Commissioner and Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly or as regards any specific case. Subject to that over all power, the officers designated either under the 'Rules' or the standing orders, can take decision on behalf of the Government . Learned Judge made it clear that these officers are the limbs of the Government. 33. In coming to the aforesaid conclusion, learned Judge also relied on the decision of the Supreme Court in the case of Ishwarlal Girdharlal Joshi etc. v. State of Gujarat and Anr. reported in AIR 1968 SC 870. The learned Judge also referred to Halsbury's Laws of England Vol. I, 3rd Edn. at P. 170 where it has been observed as follows: Where functions entrusted to a Minister are performed by an official employed in the Minister's department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. Learned Judge also quoted principles of Administrative Law and also the view taken by Sir Ivor Jennings in his Cabinet Government . 34. In view of such clear enunciation of the legal position by the Supreme Court, this Court has no hesitation in accepting that when the Secretary acts under the aforesaid officer order, such action of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the official is that of the Minister. 36. In view of such authoritative and consistent finding of the Hon'ble Supreme Court, this Court does not find any merit in the contention of the Petitioner that in the absence of a statutory delegation under Section 26(2) of the said Act, the Secretary cannot hear the Petitioner when the statute provides that such hearing is to be given by the State Government. Such a contention, to say the least, is against the tenets of Cabinet system of Government under our Constitutional set up. 37. Relying on the decision of the Hon'ble Supreme Court in the case of Nageswara Rao (supra), the next question which has been urged is that the actual decision in this matter under the Rules of Business is that of the Chief Minister who does not give a hearing. As such the hearing given by the Secretary is of no consequence. 38. Before this Court could answer that question, one has to realize that the facts in Nageswar Rao are totally different from the facts of the present case. In Nageswar Rao there was dispute between two parties, namely, Nageswar Rao on one hand and Andhra Pradesh State Road Transport Corporation and in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no legitimate expectation. Thus there is fundamental factual difference between the case of Nageswara Rao and in the present case. In the case of Nageswara Rao the proposed scheme contemplated invasion of existing proprietary rights of the operators as a result of nationalization scheme. Therefore, the objectors to such nationalization are objecting in defence of their existing rights. Here nothing of the kind takes place. It is of course true that while considering the applications either under Rule 12 of Rule 26 a hearing has to be given and it is given by the State Government. But this hearing of its own does not partake of nature of a quasi-judicial functioning by the State, specially when such hearing is given at the initial stage of the application for licence or lease. At that stage there is no preexisting or vested right of 'his' in favour of the applicant. (See the judgment of the Supreme Court in the case of State of Tamil Nadu v. Hind Stone (supra). 40. Now under the Constitutional Scheme of Cabinet, Governance a hearing given by the Secretary of the Department amounts to a hearing given by the concerned Minister to whom such business is allocated under the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India after scrutiny of the proposal returned the same for fresh examination along with other applications which were proposed to have been recommended but were rejected. Accordingly , the Petitioner was noticed under Rule 12(1) of the Rules to appear in person on 30.1.2001 and the Petitioner attended the personal hearing. The said action taken by the Government in 2001 has not been challenged by the Petitioner. Thus the said action of the Government in 2001 cannot be collaterally challenged in this writ petition in 2007. Such collateral and stale challenge without any explanation for the delay is not maintainable. In any event, the appropriate authority of the Government has not taken any final decision after the matter has been remanded by the revisional authority for hearing by the State. Hearing is continuing. It is open to the Petitioner to appear before the Secretary in connection with his application for hearing. No final decision has been taken by the Secretary, So going by these facts. it cannot be said that the Petitioner's case at the moment is ripe for interference by this Court, however, this Court considered all the points discussed above, since questions were rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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