Sona Exports vs The Director of Mines and Geology and others

Umesh Chandra Banerjee, CJ

The field of legislation in respect of regulation of mines and minerals is available under Entry 54 of LIst-I of the Constitution, and the Parliament in accordance therewith did enact the Mines and Minerals (Regulation and Development) Act, 1957, being Act No.67 of 1957 (for short ''the Act'') and in terms of Section 2 of the Act, it has been expressly declared that the Union should take under its control the regulation of mines and the development of minerals to the extent as provided in the Act. Normally, therefore, this field of regulation, subject to the provisions of the Act, stands covered by the Act.

As regards the field being occupied by the Central Legislation viz., the Act of 1957, reference may be made to the decision of the Supreme Court in the case of Baijnath Kadio Vs. State of Bihar and Others, , wherein Hidayatullah, C.J., while dealing with the matter, has been pleased to observe as follows:

"Although these supplementary arguments were raised, it is obvious that they can arise according as the two main arguments arc allowed or disallowed. Therefore, it is necessary to address ourselves to the first argument that the legislative competence to enact the amendment to Section 10 of the Reforms Act was wanting. As the amendment was made after Act 67 of 1957, we have to consider the position in relation to it. Entry 54 of the Union List speaks both of Regulation of Minerals Developement and Entry 23 is subject to Entry 54. It is open to Parliament to declare that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go, is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature. This proposition is also self-evident that no attempt was rightly made to contradict it. There are also two decisions of this Court reported in the The Hingir-rampur Coal Co. Ltd. and Others Vs. The State of Orissa and Others, , and State of Orissa Vs. M.A. Tulloch and Co., , in which the matter is discussed. The only dispute, therefore, can be to what extent the declaration by Parliament leaves any scope for legislation by the State Legislature. If the impugned legislation falls within the ambit of such scope, it will be valid, if outside it, then it must be declared invalid."

Law, therefore, seems to be rather well settled since the above-noted decision and we need not, thus, dilate much on that score.

It is, however, noteworthy that Section 15 of the Act, however, specifically provides that the State Government may, by notification in the Official Gazette, make rules for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of the minor minerals and for purposes connected therewith. Incidentally, be it noted that such a legislative authorisation is by reason of Entry 23 under List II.

In terms of Section 15, however, the Andhra Pradesh Minor Mineral Concession Rules came into existence by Notification No. 1172, Industries (B1) Department, dated 4th September, 1967 read with the amendment effected subsequently. Rule 12(5) specifically speaks of regulation of grant of leases of granite useful for cutting and polishing. It would however be convenient to note sub-rule (5) for proper appreciation of the matter in issue. The relevant portion of sub-rule (5) reads thus:

"12(5) Regulation and grant of leases for granite useful for cutting and polishing.

(a) Quarry leases for granite useful for cutting and polishing shall be granted by the Director on application made to him in Form B-I subject to UK provisions of Clause (b) and each such application for grant of quarry lease shall be accompanied by a copy of Industrial Licence. Project Report along with Treasury or Bank Challan for Rs.5,000/-towards non-refundable application fee and a deposit of Rs.10,000/- for every hectare or part thereof in the form of crossed Demand Draft in favour of the Assistant Director of Mines and Geology of the District concerned in whose jurisdiction the area fells. Such deposits would be refunded to the unsuccessful applicants and in respect of the applicants in whose favour the quarry lease is granted the same would be adjusted towards the dead rent or seigniorage fee.

(b) The applications for grant of quarry lease for granite shall be disposed of by the Director in the order of their receipt. Whenever more than one application are received on the same day, the Director, with the approval of the Government shall grant lease to the deserving applicant on merits to be recorded in writing:

Provided that the Director may grant a quarry lease to an applicant whose application is received later in preference to earlier application with the prior approval of the Government for any special reasons to be recorded in writing;

Provided further that the Director shall examine and get himself satisfied, about the capacity of the applicant''s financial status and the genuiness in setting up of the unit for granite useful for cutting and polishing before grant of lease.

(c) Applications for grant of quarry leases shall be disposed of by the Director, the Director shall reject the applications in the event of any default on the part of the applicants for not attending the inspection or survey or submission of mineral revenue clearance certificate or any other material papers as required by the Director. The lease deed shall be executed within sixty days from the date of grant or within such further period as the Director may allow in this behalf provided the grantee applies for extension of time within fifteen days from the date of expiry of the period stipulated for execution. Such extensions can be granted by the Director not exceeding two times and each time not exceeding thirty days. If no lease deed is executed within the stipulated period or the extended period due to any default on the part of the applicant the Director shall revoke the order granting lease.

(d) A quarry lease for granite useful for cutting and polishing shall be granted by the Director for a period of fifteen years with a provision of renewal. In respect of 100% Export Oriented Units the leases for black granite shall be granted not exceeding ten hectares under each lease subject to a maximum extent of fifty hectares. In addition 100% Export Oriented Unit may be granted quarry leases for coloured granite over a maximum extent of 100 hectares and not exceeding 20 hectares under each lease:

Provided that in case of Industrial Units already gone into commercial production with an investment of Rs.15 crores and above on Plant and Machinery, the Director may grant an additional extent of 25 hectares for black granite and 50 hectares for coloured granites. However, Government may relax the maximum limits specified above in respect of deserving entrepreneurs;

Provided further that in the case of Small Scale Industrial Units, with a minimum investment of Rupees twenty lakhs on plant and machinery the total extent of quarry leases granted for black granite shall not exceed ten hectares and the extent of each lease shall not exceed five hectares;

Provided (also) that the Small Scale Industrial Units may be granted a total maximum extent of twenty hectares and not exceeding ten hectares in each lease for coloured granite. However, the above restriction on the extents shall not apply in respect of pattadars who apply for quarry leases in their own lands.

A plain reading of the sub-rule as above indicates that the entire thrust of Legislature is one the Director, who alone has been noted to be competent for the purposes of grant of the leases and none else. The sub-rule is clear and categorical to that effect. It is also to be noted that these Rules do not speak of any Special Officer acting over and above the Director. The Director is the person authorised under the Rules to take appropriate steps for grant and cancellation of licence. A close look to Rule 11(2) makes the position clear enough to indicate the authority and jurisdiction of the Director.

At this juncture, however, it would be convenient to briefly advert to the contextual facts. This writ appeal is directed against the order of a learned single Judge wherein the Memorandum issued by the Officer on Special Duty has been declared as valid.

The instant writ petition has been filed for issuance of a writ of mandamus declaring the Memorandum issued by the Officer on Special Duty as unconstitutional and to direct the third respondent to consider the quarry lease applications of the petitioners.

The Principal grievance of the appellant is in regard to the particular Memorandum issued by the Officer on Special Duty, Sri G. Raghavender Rao, on 21-10-1995. In the body of the Memorandum, it has been recorded :

"The attention of Director, Mines and Geology is invited to the subject-matter and he is requested not to grant any quarry leases on granite and barytes (fresh and renewals) till a policy decision is taken."

Incidentally, be it noted that the mandate not to grant any quarry leases is directed at the Director of Mines and Geology, Andhra Pradesh, Hyderabad by an authority, who admittedly does not have any statutory locus to issue the same as more folly detailed above.

As a matter of fact, since the field is occupied by a legislative enactment and the rules framed in terms therewith, the only authority prescribed under the law has the jurisdiction to take steps in terms of authorisation as is available under the statute or the rules framed thereunder. There cannot possibly be any other authority over and above the Director in terms of the provisions of the rules and in that view the matter, since the rules do not enjoin any Officer on Special Duty, question of the exercise of jurisdiction by an authority in the name of Officer on Special Duty does not and cannot arise and as such Officer on Special Duty cannot thus have any authority in terms of the provision of the rules to issue any Directive as has been effected in the matter and being impugned in the writ petition. This aspect of the matter has not been properly considered, neither it has been appreciated by the learned single Judge.

In that view of the matter, the Officer on Special Duty has had no authority in law neither any jurisdiction to issue any mandate or directive to the Director within the meaning of the Rules framed under Andhra Pradesh Minor Mineral Concession Rules, 1966 and as such the impugned Memorandum cannot thus be said to have been issued in accordance with law.

During the course of hearing the matter, the learned advocate appearing for the State Government drew the attention of this Court to Article 162 of the Constitution, which records the extent of the executive power of the State. The Article provides that subject to the provisions of the Constitution, the executive power of a State shall extend to matters with respect to which the Legislature of the State has power to make laws. In our view, however, considering the contextual facts, Article 162 does not have any relevance, neither the said Article can be said to have any application in the facts of the matter under consideration.

During the course of submissions, the learned advocate appearing for the State further contended that as a matter of fact the State Government has constituted a Board and the latlcr has already formulated and recommended a policy and the same is awaiting finalisation by the Cabinet. The learned advocate submitted that in all probability, within a few weeks, the said new policy would be operative. We are, however, not expressing any opinion in regard thereto, suffice it however to record that Law Courts would be rather slow and loath to rely upon policies which are yet to see the light of the day and it is on this perspective we are unable to record our concurrence with the observations of the learned single Judge, as recorded in paragraph 19 of the judgment under appeal to the effect:

"In my considered opinion, the applications received for grant of quarry lease may be kept pending by the Director pending the formulation of new policy."

Formulation of a new policy has not been effected, as noted above, and the law Courts cannot possibly be guided by a probability of such a formulation or a proposed new policy in the matter of dispensation of justice. The concept of justice is to be administered by the law Courts on the basis of the law as is available as of date, but not upon consideration of a proposal which is yet to be finalised. In that view of the matter, question of issuance of a Memorandum by an Officer on Special Duty does not and cannot arise on the ground of lack of authoritative jurisdiction. The Memorandum therefore cannot but be set aside and quashed.

As regards Rule 12 (5), be it noted that the learned single Judge has been pleased to record that the said rule merely regulates the procedure for grant of leases without there being any imposition of any time limit within which the Director has to dispose off the applications. The learned single Judge further observed that the period of sixty days as mentioned in Rule 12 (5)(c) merely says "that the lease deed is to be executed within sixty days from the date of grant. Evidently, there is no time limit within which the application of the applicant is required to be considered." We are, however, unable to record our concurrence to such a broad proposition of law. Whenever any power is conferred onto a public authority and in the event of the statute being silent as to the time limit within which the power is to be exercised, it would be presumed that the statute intended within a reasonable time or without least practicable delay. There is definitely an indication in the Act as to the legislative intent; otherwise the period of sixty days would not have been referred in terms of Rule 12(5)(c). In this context, the observation of Lord Cairns in the case of Julius v. Bishop of Oxford,5 AC 214, ought to be noted:

"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so"

A duty is coupled with an obligation and in the event of conferment of a duty onto a particular officer, there is, therefore, an obligation to deal with the matter with utmost expedition. Delay is not contemplated and the question of there being no time limit being the guiding factor for the Director to dispose of the application docs not and cannot arise and it is in this perspective also direction to keep the applications pending, as has contained in paragraph 19 of the judgment under appeal cannot be termed to be a proper appreciation of the matter in issue. We are unable to record Our concurrence to the observations of the learned single Judge that it is not a situation warranting interference of this Court for issuance of any writ. Incidentally, be it recorded that this Court has not been informed, during the course of hearing, of any time limit for declaration of a new comprehensive policy in the near future, as such we need not detain ourselves in that perspective.

In the premises, the order of the learned single Judge thus cannot be sustained and is therefore set aside and quashed.

The appeal is allowed accordingly. No order as to costs.

After this order has been pronounced in open Court, it has been brought to our notice that there are pending applications with the Government even before the issuance of the Memorandum. On the wake of fresh factual score being brought to our notice at this juncture and to avoid farther litigation we deem it fit and expedient to direct the respondents to dispose off all the pending applications within a period of eight weeks from the date hereof.