- (1.) THIS petition has been filed challenging the order dated 16.09.2010, passed by the Additional Director (Mines) Jodhpur Zone, Jodhpur revoking the sanction granted for a mining lease to the petitioner for the mineral marble in village Indo Ka Bas, Tehsil Phalodi, District Jodhpur on 05.05.2007 and also against the order dated 25.05.2011 whereby the Deputy Secretary, Mines Department, Rajasthan Jaipur has upheld the aforesaid order of recovation in a revision filed by the petitioner under Rule 47 of the Rajasthan Minor Mineral Concessions Rules, 1986 (hereinafter 'the Rule of 1986').
(2.) THE admitted facts of the case are that the petitioner applied for and was sanctioned a mining lease under letter dated 05.05.2007 for mineral marble near Indo Ka Bas, Tehsil Phalodi, District Jodhpur. In terms of the Rule 19 of the Rules of 1986, the petitioner as a sucessfulZ allottee of a mining lease was obliged to undertake certain steps within a period of 45 days of the receipt of the order of grant of sanction and to execute the lease-deed within three months from the date of receipt of the order of grant of sanction. In terms of Rule 71 of the Rules of 1986, every notice under Rules of 1986 required to be given to the lessee / licencee is to be given in writing, in person or by registered post addressed at the address recorded with the respondent-Department. It appears that even though a mining lease was sanctioned to the petitioner, the order of grant of sanction was not communicated to the petitioner and the petitioner appears to have been made aware of the order of grant of Section under Rule 19 of the Rules of 1986 only on 06.11.2009. In these circumstances, the petitioner made a representation to the concerned Assistant Mining Engineer, Department of Mines and Geology, Baleser on or about 10.02.2010, a copy whereof was also sent to the Superintending Mining Engineer ("SME" for short), detailing the facts of the case and non-receipt of the order of grant of sanction for mining lease before 06.11.2009 and praying that the petitioner be allowed to execute the mining lease in extended time from the date sanction received without payment of penalty. The said representation however appears to have been of no avail and the petitioner was served an order dated 16.09.2010, passed by the Additional Director (Mines) revoking his mining lease. Mr. A.K. Sharma, Sr. Advocate appearing for the petitioner has submitted that both the order dated 16.09.2010, passed by the Additional Director (Mines) as upheld in revision vide order dated 25.05.2011 by the Deputy Secretary, Mines and Geology Department filed by the petitioner under Rule 47 of the Rules of 1986 are absolutely de hors the provisions of Rules 1986 and ex facie perverse. It is submitted that it was incumbent upon the Additional Director (Mines) as also the Deputy Secretary in revision to determine that the petitioner was in default subsequent to the receipt of the order of grant of sanction of mining lease. This fact which was fundamental to the question of the petitioners' right and the exercise of the powers by the Department to cancel / revoke the order of grant of sanction was not determined on any concrete evidence but on sheer unwarranted inference. It is also submitted that the statutory authority below also overlooked the admitted fact that contrary to the mandatory requirement of Rule 71 of the Rules of 1986 the communication of the order of grant of sanction for mining lease was not conveyed to the petitioner through registered post or through personal service. It is submitted that the statutory authorities have noted the fact that the communication of grant of sanction was allegedly sent by ordinary post and there was admittedly no proof of receipt of the communication. Counsel further submits that without receipt of communication of the order of grant of sanction as mandated in terms of Rule 71 of the Act of 1986, there was no question of the petitioner being in breach of his obligations under the Rules of 1986 and be visited with an order of revocation of the sanction for grant of the mining lease. Mr. S.N. Kumawat, learned AAG appearing for the respondent-Department fairly concedes to the facts on record and in fact in para 4 of the reply to the petition it has been admitted that there was no proof of service of communication of the order of grant of sanction dated 05.05.2007 on the petitioner. It is also not in dispute that the communication of notices and important letters such as order of grant of sanction in terms of Rule 71 of the Rules of 1986 has to be sent by way of registered post and in the present case was not so done. The letter of sanction was sent only by ordinary post. I have heard the counsel for the parties and perused the writ petition as also reply thereto.
(3.) FROM the facts of the case, it is a little odd that the communication with regard to the order of grant of sanction to the petitioner for the mining lease as applied for mineral marble was not sent as required under Rule 71 of the Rule of 1986 by way of registered post. Apart from the aforesaid, which is a statutory requirement, the respondents have very fairly admitted that there was no proof of a receipt of the order of grant of sanction dated 05.05.2007 by the petitioner. In this view of the matter, in my considered opinion, the petitioner could not have been held in default for non-compliance. In the facts of the case, I am of the view that the order or revocation dated 16.09.2010 mechanically passed has been similarly upheld by the Deputy Secretary, Mines Department vide its order dated 25.05.2011 in the exercise of revising powers under Rule 47 of the Rules of 1986. The orders are based on sheer inference unwarranted in law on the ground that the petitioner having receipted other correspondence sent by ordinary post, there was a reasonable ground to presume that the petitioner also receipted the order of grant of sanction dated 05.05.2007. The Deputy Secretary appears to have overlooked that the presumption of service of letters sent by post only relates to letters sent by registered post in terms of Section 27 of the General Clauses and not in respect to letter sent by ordinary post. Oddly the Deputy Secretary appears to have also overlooked the reply of the Mining Department in the revision petition before him that there was admittedly no proof of receipt of the order of grant of sanction dated 05.05.2007 by the petitioner. Further the Deputy Secretary appears to have mis-directed himself in seeking to non-suit the petitioner on the ground that the power of attorney representing the petitioner in the Mining Department was common to the power of attorney of other applicants for mining lease. The revising authority overlooked a basic dictum that where there is no prohibition by law in the conduct of human affairs, permission is to be assumed. Further in any event powers of attorneys have legal recognition. ;