M/S. SERAJUDDIN & COMPANY & OTHERS Vs. UNION OF INDIA & OTHERS
LAWS(CAL)-1996-9-42
HIGH COURT OF CALCUTTA
Decided on September 27,1996

M/S. Serajuddin And Company And Others Appellant
VERSUS
UNION OF INDIA AND OTHERS Respondents




JUDGEMENT

B.M. Mitra, J. - (1.)The subject matter of the instant writ application is a challenge thrown in the writ proceeding with regard to two annexures being annexure 'Q' and annexure 'R' as appended to the writ petition. this Court has perused the prayers contained in the writ petition and prayers appear not to have been conducted in a happy language. It has been submitted by Mr. Roy, learned Advocate appearing on behalf of the writ petitioners that this Court should not be too serious and technical in taking ism to account of the language of the prayer itself and on the contrary it should confine its attention to the subject matter of challenge before the Writ Court to assess even the question of preliminary objection about the question of territorial jurisdiction . By a detailed order passed by this Court on 1.3.1996. preliminary objection was overruled and the same has been reported in the decision of Serajuddin & Company & Others... Petitioners v/s. Union of India... Respondents in 1996 Volume 2, Part 2, Calcutta Law Times, page 102. Therefore the said question is not required to be assessed over again and this Court will now scrutinise the question of the merit of the writ application. As it has been observed earlier that the prayers contained in the writ petition are not happily drafted and this Court while appreciating the subject matter of the writ petition has perused the averments contained in paragraph 53 thereof so that There may not be any doubt that the subject matter of the writ petition is with regard to the validity of two annexures being annexure , annexures 'R' as appended to the writ petition. While reverting back to the question about the unhappy language of the prayers, this Court of its own is reminded of a celebrated observation of a Supreme Court decision where the Apex Court has occasion to observe and opened that pleadings should not be read in right terms and same relaxity should be given keeping in view of the law literacy of the litigant public and inarticulate mode of drafting. The facts as delineated in the writ petition tend to reveal that one Serajuddin & Company, a Partnership firm applied on or about 11.11.1944 to the then Raja of Keonjhar for a Mining lease of Manganese ore over an area of 3329.40 acres in Village, Gurda, Balda and Kali mati in Champua Sub -Division in the State of Orissa. In response to the said application a Mining lease was granted in favour of the petitioners for a period of' 10 years with an option for renewal for a further term of 15 years. After independence the Keonjhar State acceded to the Government of India and the same was integrated with the State of Orissa and rights and liabilities of the Raja vested in the State of Orissa. On or about 8th of September.. 1948 an enactment known as Mines and Minerals (Regulation and Development). Act. 1948 was passed. The said Mines and Minerals (Regulation and Development) Act. 1948 was replaced by the Mines and Minerals (Regulation and Development) Act. 1957 which provided inter alia that the said Mining Lease (Modification of Terms) Rules. 1956 would be deemed to have been made under the said Act The Central Government also promulgated the Mineral Concession Rule, 1950 by notification No. G.S.R 1398 dated 11.11.1960. The petitioners filed an application to Government of Orissa for grant of Mining lease in form No. 11 for Manganese and Iron Ore over an area of 830 acres in the district of Keonjhar in response to the notification issued by the Revenue Department. Government of Orissa vide No. 846 -XXI -A/53 Mines, dated 5.3.1955. The State of Orissa decided to grant lease to the petitioners which would be reflected from annexure 'B' to the writ petition. it is not out of contact to make a cryptic reference that from the expiry of 1947 onward to the 1st Quarter of 1955, the petitioner company enjoyed the favour of the State Government for getting accord of approval to carry on its mines operations. Thereafter, It appears that permission was restricted to Manganese Ore alone but not to Iron Ore as appearing from annexure 'C' to the writ petition. Thereafter, separate applications were caused to be made pursuant to the advice of the authorities of the State Government of Orissa and separate permission was obtained for carrying on with operation of Manganese Ore and also Iron Ore and the terms and conditions were laid down in model form for Mining Lease. The leases were granted which were due to expire on 3rd of December, 1977 after expiry, by either of time of a period of 20 years. Thereafter, on 17.8.1973 the petitioners decided to surrender Manganese Mining Lease and the said surrender was accepted by the State. Government of Orissa. Thereafter, the petitioners applied for renewal of Mining lease of Iron Ore for a further period of 30 years commencing from 3.12.1977. As the said application for renewal of Mining lease was not disposed of within the statutory period of 6 months from the date of filing of application, the petitioners filed a revisional application before the Central Government as the State Government did not dispose of the same within the statutory period of time. The said sessional application filed before the Central Government stood dismissed as premature and working permission for 3 months was granted by the state Government of Orissa for a period of 3 months and several consecutive work permits for periodic intervals of 6 months were granted until 3.12.1978. It appears from the relevant paragraphs of the writ petition and the connected annexures that the State Government of Orissa agreed to renew the lease and sought approval of the Central Government. In the background of the entire gamut of facts as succinctly delineated hereinbefore, State Government of Orissa passed an order vide annexure 'R' stating that the application forwarded and recommended by the State Government was rejected by the Central Government as it expressed its inability to accord approval. The entire controversy as it emanates from the background of the entire facts leading to the issuance of annexure 'R' dated 5th of July, 1979 annexed to the writ petition wherefrom it appears that Government of India vide letter No. 5/35/78 -M5 dated 25.5.1979 recorded its inability to accept the proposal of the State Government to the grant of renewal of lease in favour of the petitioners and as a sequel to that State Government of Orissa was constrained to reject the said application for grant of renewal.
(2.)That the entire, controversy is centered -round the impugned annexure 'R' vide No. 9092/MG Bhubaneswar, dated 5.7.1979 issued by the Deputy Secretary to the Government of Orissa by the order of the Governor. Mr. Roy, the learned Advocate appearing on behalf of the petitioners while drawing attention of this Court to annexure 'R' has committed before this Court that the said annexure 'R' is not resonant with reasons for refusing or according approval with regard to the renewal of Mining lease. The State Government has only acted as a Post Office to communicate the decided of the Centre Government about their inability to accept the proposal of the state Government and as a natural consequence of the same State Government is left with no other alternative but to reject the said application for grant of renewal to supersession of their recommendation made at an earlier point of time. In the backdrop of the same, Mr. Roy in learned Advocate for the petitioners has further drawn the attention of this Court to annexure 'Q' that is, a copy of the letter No. 5/35 -78/MS, dated 25.7.1979 from which it appears that communication is to the effect about the Central Government about its inability to accept the proposal of the State Government to the renewal of the Mining lease. The learned Advocate of the petitioners has assailed the said annexure being annexure 'Q' which is in the nature of communication made by the Central Government to the State Government of Orissa, the copy of which has not been forwarded to the writ petitioners. Before adverting to annexure 'R' Mr. Roy has assailed annexure 'Q' and according to him, if annexure 'Q' is denied of any basis, then annexure 'R' loses its foundation. Mr. Roy. the learned Advocate of the petitioners in his bid further to assail annexure 'Q' has contended that the decision of the Central Government does not partake of the character of quasi -judiciary nature of the order or administrative order having civil consequences. According to Mr. Roy, in passing such orders the authority has to comply with the twin principles namely, audi alteram partem and that of fair play which included giving reasons for the order. According to Mr. Roy, annexure 'Q' is bereft of any reference to reason. In this context a reference may be made to the decision of Vasiya Viswanath (sic) New Education Institute & Others, reported in AIR 1986 Supreme court page 2105 where it has been observed that when the statutory provision for appeal to the higher forum in order to enable the superior (sic) or the Appellate Court to know or be apprised of the reasons which impel the Court to oppose the order in question, the recording of reasons in disposing of the same is a mandatory requirement to be fulfilled in consonance with the principles of natural justice. It is no answer at all to this legal proposition that the purpose of expeditious disposal of eases a laconic order like "dismissed or rejected" will be made without passing a reasoned order or a speaking order. Mr. Roy, the learned Advocate for the petitioner has made streneous endeavour by making copious reference about the weaning of the word 'approval' and reference was made to Volume 3A of the Words and Phrases (Supplement page 210) which has been given thus "Statutes which vest approval authority imply a discretion and judgment to be exercised to sanction or reject the acts submitted the very act of approval unless limited by context of statute providing therefore import the act of passing Judgment and use of discretion Even a reference was made from Corpus Juris secundum and it has been contended that the act of approval requires judicial approach and as such exercise of power by Administrative authorities is impossible without exercise of quasi -judicial power. According to Mr. Roy, Annexure 'Q' is not only non -speaking in nature but it has refused the benefits the person aggrieved of being heard. According to further submissions of Mr. Roy the compliance of principles of natural justice demands that Central Government ought not to have passed the impugned order vide annexure 'Q' when order is proposed to go against the interest of the petitioners without affording it a reasonable opportunity of hearing. It has been contended that in cases where valuable rights of individual are affected, by decisions of Administrative authorities even in courses of carrying out a scheme embodying a policy, the same should have been given effect to by adaptation of quasi -judicial procedure. According to Mr. Roy, the reason is fundamental base of all basic concepts of rights. Right without reason is stated to be an anachronism. The reasons of the links between the materials on which certain consequences are based and actual inferences drawn, 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 concerned and the conclusion reached. Only in this way can opinions of decision recorded be shown to be manifestly just and reasonable. In order to drive home the said point, Mr. Roy has referred to the decision of Bhagat Raja v/s. Union of India reported in, AIR 1967, 1606 and also reliance was placed on the Case of Union of India v/s. M.L. Kapoor reported in, AIR 1974 Supreme Court, page 87. A further reference was made to the decision in the case of S.N. Mukherjee v/s. Union of India. reported in, AIR 1990, Supreme Court, page 1984 and it has been contended that in paragraph 11 thereof relying on three decisions of U.S. Supreme Court it was held that in the United States the Court has insisted upon recording of reasons for decision by Administrative authority because administrative process should be best vindicated by clarity and they promote the thought by the Authority and compel conformity to the relevant provisions. It has been further adumbrated by placement of reliance on the case of State of West Bengal v/s. And Krishna Shaw, reported in, AIR 1990, Supreme Court, page 2205, para 7 where it was held that "giving of reasons an essential element of administration of (sic) A right to reason to therefore an indispensable part of sound (sic) judicial review Mr. Roy attacked annexure 'Q' to the writ petition firstly, on the ground that the same was devoid of reason and secondly, on the ground of denial of opportunity of hearing to the party to whose detriment the order was passed and thirdly, on the ground of delay and/or lack of communication between the authority concerned and the aggrieved person. According to Mr. Roy, construction of Rule 26 of the Mineral Concession Rules, 1960 is founded on twin limbs namely, recording of reasons and communication to the applicant Here, according to Mr. Roy, annexure 'Q' is communicated to the State Government of Orissa and not to the writ petitioners. Mr. Roy has also further submitted that even if there is any provision of appeal or revision against the order of the Central Government the said relief will be relegated to an illusory exercise for want of reasons in the body of the order as a result of which the writ petitioners cannot formulate any grounds of appeal or revision in the proposed move against the said order. Much has been attempted to be submitted by Mr. Kundu, learned Advocate appearing on behalf of the Union of India on this score that since remedy is forecast under the statute by way of revision before the appropriate authority against the order passed as reflected from the relevant annexures, therefore, this Writ Court should not have granted any relief in favour of the petitioners. this Court has already indicated and is of the view that if the orders complained of are bereft of any reason then excepting by way of illusory exercise, alternative remedy cannot be availed of. It is needless to point out that alternative remedy is not an absolute bar to the maintainability of the writ petition for which references to the catena of decisions may not be necessary as it is well known as a legal proposition. No substantial answer can be given by the learned Advocate appearing on behalf of the Union of India to repel the contention of the writ petitioners as delineated hereinbefore. The impugned annexure being Annexure 'Q' is not only cryptic in form but it does not make any whisper of any reason. It is difficult, if not impossible, to decipler as to what is the reasoning prompting the authorities to take such a decision which is at the back of its mind. Furthermore, annexure 'R' apparently appears to be reproduction of the communication made by the Central Government to the State Government and State Government acted as a Post Office only to give effect to the same and as such it has nothing to act independently in the light of the Central Government disapproval. The State Government only gave its ditto to the version of the Central Government which is without any hearing being given to the aggrieved party and the said decision appears to have taken behind the back of the writ petitioners. Accordingly, it prima facie appears that annexure 'Q' is not sustainable being in derogation of the principles of natural justice not being backed up by any reason of whatsoever nature and of the non speaking character of the order passed by the Central Government The State Government had only acted in its capacity as delineated authority of the Central Government and it has no Independent limb to exercise its function and discretion and it has only communicated the order of the Central Government by way of a Post Office by giving its Rubber Stamp to the decision of the Central Government which is vitiated not only by procedural irregularity but also because of want of merit for infraction of the basic tenets of modalities to be exercised by any Administrative Authority or Quasi -Judicial Authority when the order is replete with civil consequences. Therefore, this Court is of the view that impugned annexure being annexure 'Q' and 'R' which are substantial subject matters of challenge in the writ proceeding are liable to be set aside. On behalf of the State Government of Orissa, no serious submission is made as it has no Independent axe to grind. Accordingly, this Court is of the view that Central Government should dispose of the forwarded memo of the State Government by giving an opportunity of hearing to the concerned petitioners for renewal of lease by giving it an opportunity of hearing and the order should be a speaking order. Therefore, a fresh order can be passed by the Central Government in the manner as indicated hereinabove as early as possible and it will be free to form its own opinion after giving a fair hearing to the parties concerned and exercise of Independent judgement in the matter. In view of the same, the impugned annexures being annexures 'Q' and 'R' appended to the writ petition are set aside. The writ petition thus stands allowed subject to above observations.
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