VIRENDRA SAHNEY Vs. DIST OFFICER

JUDGEMENT

(1.) In this writ petition brought under Article 226 of the Constitution, primary question for consideration is whether the District Officer/collector has the jurisdiction to set aside and cancel his earlier order granting mining lease in favour of a person merely because the applications of certain others had not been considered at the time of granting the earlier lease as those applications were defective and no opportunity had been granted to remove the defects. 2. The Collector, Mau issued a notice dated 24-4-1995 inviting applications for grant of mining lease under Chapter II of the U. P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred as the Rules ). In pursuance of that notice, 26 applications including the two made by the petitioners were received by the Collector. By an order dated 5-7-1995 mining leases were granted in favour of the petitioners. Accordingly, petitioner No. 1 was directed to deposit Rs. 3,21,300/- and petitioner No. 2 Rs. 86,062. 50p. within a period of seven days. The petitioners deposited the said amount within the specified period. In all, petitioner No. 1 has deposited Rs. 6,42,600/- and petitioner No. 2 Rs. 1,72,125. 02. On 15-7-1995, respondent No. 2 who is Khaniz Prabhari/mines Officer Incharge district Mau, issued orders permitting petitioner No. 1 to do mining work in lot No. 1 and petitioner No. 2 in lot No. 2. Both the petitioners started mining work on 18-7-1995 and have been doing work of mining/excavation/lifting of sand since then, Form MM-11 duly signed by the District Officer was also issued to the petitioners to enable them to take away the minerals. There is no dispute that the petitioners complied with all the directions issued by respondents 1 and 2 and no default of any type was committed by them. Thereafter, complaints were received from several persons by the Collector stating that their applications for grant of mining lease had not been considered and the same had been rejected on account of clerical mistake. Thereupon, the Collector issued a notice dated 31-7-1995 to the petitioners inviting their replies. Accordingly, the petitioners filed their replies. By the impugned order dated 14-8-1995, the District Officer, Mau cancelled all the proceedings which had resulted in grant of the two leases concerning lot Nos. 1 and 2 on 5-7-1995 in favour of the petitioners and directed the issue of a fresh notice inviting applications. More than one ground was raised by the persons who challenged the grant of mining leases in favour of the petitioners. However, only one ground found favour with the District Officer. The impugned order (Annexure 13) states that when the applications were received, they were treated to be complete, but subsequently when they were scrutinised under Rule 7, it came to light that they were incomplete and so they were rejected, but if they had not been treated to be correct initially, the applicants would have removed the defects and thus a clerical mistake had occurred and so, the impugned other needed to be corrected under Rule 61 of the Rules. The petitioners have alleged that under Rule 61 only clerical and arithmetical mistakes can be corrected and since no such mistake had occurred, the power exercised by respondent No. 1 is without jurisdiction. The petitioners have also averred that besides depositing more than Rs. 8 lac towards royalty and security they have further invested more than Rs. 5 lac" in making the approach road up to the river side as there was a big cavity and big land heap and any vehicle was not able to approach the river bank for loading of the sand" and all this had to be done in view of Rule 40 of the Rules. The case of the petitioners is that if the respondents are not restrained from interfering with the mining work of the petitioners on the basis of the leases granted to them, irreparable loss and injury would be caused to them. They have sought a writ, direction or order in the nature of certiorari quashing the order dated 14-4-1995 (Annexure 13 to the writ petition) and the notice of the same date, i. e. 14-8-1995 (Annexure 14) inviting fresh applications and also a writ, direction or order in the nature of mandamus commanding and directing the respondents not to interfere with the mining work of the petitioners on the basis of the leases granted to them, in view of the impugned order passed by respondent No. 1 3. One counter affidavit has been filed by the Additional District Magistrate (F), Mau. He has stated that the order dated 14-8-1995 was passed to correct the mistake in exercise of the powers under Rule 61 read with section 151 of the Code of Civil Procedure as the Collector found that the applications of other persons had been rejected on account of clerical mistake. Further, it is averred that the petitioners should have availed of the remedy of appeal as provided under Rule 77 and ought not to have approached this Court by way of writ petition. A counter affidavit has also been filed by Rajendra Nishad, respondent No. 3, who was one of the applicants and at whose instance the mining leases in favour of the petitioners were cancelled by the impugned order dated 14-8-1995. He has stated that his application was complete but was illegally rejected as incomplete and no notice whatsoever was given to him to complete his application as contemplated under Rule 6 (2) of the Rules. Further, he has pleaded that respondent No. 2 had no jurisdiction to permit the petitioners to start mining operations since no mining work can take place without execution of a lease deed. A few more grounds have also been pleaded in an attempt to show that the leases were granted in favour of the petitioners in contravention of some other rules. However, we do not propose to deal with those grounds since we are not considering as to whether the leases should have or should have not been granted to the petitioners. We are primarily concerned with the question as to whether the impugned order had been passed by the District Officer without jurisdiction. Respondent No. 3 has also taken the plea that power of review is inherent in the authorities passing orders. 4. We have heard Sri S. P. Singh, Advocate for the petitioners, Sri J. N. Verma, Standing Counsel for respondents 1 and 2, Sri Mukesh Prasad, advocate for respondent No. 3 and Sri L. N. Pandey, advocate, for respondent No. 4. Only two points arise for consideration in the case; one whether respondent No. 2 could permit the petitioners to start mining operation without execution of lease in their favour and, second, whether the impugned order cancelling the leases in favour of the petitioners is void, having been passed by the respondent No. 1 without having jurisdiction to do so. 5. With respect to the first question as to whether the petitioners could start mining work without execution of the lease deeds, the leases having been for sand, clauses (3) and (4) of Rule 14 of the Rules are relevant. They read as under: " (3) Where an order has been made for the grant of a mining lease for sand or morrum or both, twenty- five percent of the annual lease amount shall be deposited within seven days of the order or within such further period as may be allowed by the District Officer not exceeding seven days and a lease deed in Form MM-3 or in a form as near there to as the circumstance of each case may require, shall be executed within one month of the said order or within such further period as the State Government may allow in this behalf. The lease amount shall be determined on the basis of the average of the amount received during the last three years from that area. If so lease amount is deposited or no lease deed is executed within the aforesaid period due to any default on the part of the applicant, the State Government may revoke the order granting the lease and in that event the application fee shall be forfeited to the State Government. (4) In case of lease of sand or morrum or both the date of commencement of mining lease shall be the date on which the deed is executed under sub-rule (3) or the date of actual commencement of mining operation whichever is earlier. " It is clear from clause (3) that once an order of grant of lease has been passed in favour of an applicant, the State Government has the power to revoke the same only if any default has been made by the applicant. Clause (4) recognises the fact that a lessee can commence mining operation even without execution of a lease deed in his favour. Therefore, respondent No. 2 could permit the petitioners to commence mining operation. The date of actual commencement of mining operation by the petitioners is the date of the commencement of the mining lease under clause (4), if by that date lease has not been executed. Thus, there is no merit in the submission that respondent No. 2 had no jurisdiction to permit the petitioners to start mining operation, as the lease - deeds had not been executed in their favour. 6. As regards the other question as to whether the impugned order was passed by respondent No. 1 without jurisdiction, no power of review has been specifically conferred upon any authorities under the rules to review an earlier order granting a mining lease. Section 151 of the Code of Civil Procedure has no application in this respect, since there is no scope for the applicability of the provisions of that Code in matters which have to be decided by an administrative authority with regard to a mining lease. Rule 61 only empowers the State Government or any other competent authority or Officer only to correct a clerical or arithmetical mistake in any order passed under the rules. Rule 61 reads as under: "61. Power to rectify apparent mistakes Any clerical or arithmetical mistake in any order passed under these rules by the State Government or any other competent authority or officer may be corrected by the State Government, authority or officer, as the case may be: Provided that no order prejudicial to any person shall be passed unless he has been given a reasonable opportunity for stating his case. "clause (2) of Rule 6 provides procedure for dealing with incomplete applications. It reads as under: " (2) If the application is not complete in any respect or is not accompanied by the fee, deposit or the documents mentioned in sub-rule (1), the District Officer or the Officer authorised by the State Government in this behalf, shall, by notice, require the applicant to complete the application in all respects or, to deposit the fee or furnish the documents within such time as may be specified in the notice, and for the purpose of Rule 9 or Rule 9-A, the date on which the application is completed in all respect, shall be deemed to be the date of receipt of application. " Thus, if an application is not complete in any respect or is not accompanied by the requisite fee or documents, it is the duty of the State Government or the concerned Officer to require the applicant by notice to complete the application in all respects or to deposit the fee or furnish the documents. The question is; if this duty was not fulfilled by the concerned officer and the mining lease was granted in favour of an applicant without considering the other applications which were found defective and in respect of which no opportunity was granted to the applicants of those applications to remove the defects, could the grant of the lease in favour of the applicant whose application was not found defective, be said to have been actuated by a clerical mistake so as to enable the District Officer to cancel the lease in the name of correction of the earlier order. ? 7. As held in Master Construction Co. (P) Ltd. v. State of Orissa AIR 1966 SC 1047 an "arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing. " A mistake in an order because of non-application or wrong application of a legal provision does not amount to a clerical mistake. Undoubtedly, it does not also amount to an arithmetical mistake. Therefore, the District Officer did not have the jurisdiction to cancel the lease granted in favour of the petitioners in exercise of the powers conferred on him by Rule 61. However, learned counsel for respondent No. 4 has referred to a Division Bench judgment of this Court in Chhotey Lal v. Gaon Samaj 1966 Rev. Dec. 149 which says that the power conferred by Section 38 of the U. P. Consolidation of Holdings Act, 1953 to correct clerical or apparent errors is in the widest terms and has not been taken away by any of the other provisions of the Act. "a clerical or apparent error can be corrected at any time, and there is no bar to its correction. " We are unable to appreciate as to how this authority helps respondent NO. 4. It is nobody's case that a clerical or arithmetical mistake cannot be corrected at any time. The question for decision is whether the mistake which was said to be clerical in the impugned order was, in fact, clerical, and on this question this authority does not help either of the parties. 8. Now, the question is whether the power of review is inherent in an administrative authority as claimed by the respondents. At regards the proceedings before the courts and tribunals, it is well settled that once the rights of the parties have been determined by a judgment, the judgment is final so far as that Court or Tribunal is concerned and it has the power to review its judgment only if such a power has been specifically conferred upon and to the extent it has been conferred upon. Section 14 (1) of the General Clauses Act, 1897 provides that where, by any Central Act or Regulation made after the commencement of the Act, any power is conferred then, unless a different intention appears, that power may be exercised from time to time as occasion requires. But that does not imply that this power includes the power to revoke an order passed earlier. Where an administrative authority in exercise of administrative power decides a question affecting legal rights, the decision once made is to be held an irrevocable legal act and cannot be recalled or revised. The reasons that support finality for decisions of Court of law equally apply to the decisions of the administrative authorities affecting legal rights. Citizens whose legal rights are determined administratively are entitled to know where they stand. Their Lordships of the Supreme Court observed in Patel Narshi Thakarshi v. Pradyumansinghji Arjun Singhji AIR 1970 SC 1273: "4. . . . . . . . . . . . . . . . . . It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the government had power to review its own order. " 9. We are thus of the considered view that since the order dated 5-7-1995 affected the legal rights of the petitioners and the petitioners had invested a substantial amount in pursuance of that order, respondent No. 1 had no authority to cancel that order and so the impugned order dated 14-81995 (Annexure No. 13) is without jurisdiction. 10. Rule 77 of the Rules provides for an appeal. It reads: "77. Appeal:- An appeal against an order passed under these rules by the District Officer of the Committee shall lie to the Divisional Commissioner within a period of sixty days from the date of communication of such order to the party aggrieved. " Learned counsel for the respondents have submitted that the petitioners should have resorted to the remedy of appeal as stipulated in the statute instead of invoking the writ jurisdiction. On the other hand, the learned counsel for the petitioners has submitted that since the appellate authority does not have the jurisdiction to grant interim stay, the only effective remedy, which was available to the petitioners, was that of a writ petition. We find substance in the argument of the learned counsel for the petitioners, as we are of the view that since the matter concerns not the adjudication of the matter on merits but about the jurisdiction of the concerned authority to review its earlier order, this is a fit case where the Court should not refuse to invoke the writ jurisdiction. 11. In the result, the petition is allowed and the impugned order dated 14-8-1995 (Annexure 13 to the writ petition) and the notice inviting applications (Annexure 14) are quashed. A mandamus shall also issue directing respondents 1 and 2 not to interfere with the mining work of the petitioners on the basis of the leases granted to them in view of the impugned order (Annexure 13 ). In the circumstances, there shall be no order as to costs. Petition allowed. .