B V JOSHI Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioner was granted mining lease to an extent of Acs. 3-5 cents in Boyanapalli village, Kurnool District by a lease dated April 12,1955 fora period of 30 years. It expires on April 11,1985. He made an application for renewal on May 21,1984. It is the case of the petitioner that a joint inspection was made by the authorities on the leased area on June 26, 1984 and he was awaiting grant of renewal. But it was not done. Therefore, the petitioner apprehending that his application was deemed to have been rejected made a revision to the Central Government under Rule 36 of the Mineral Concession Rules, 1960 (for short 'the rules'). The Central Government by an order dated February 27, 1986 rejected the application of the petitioner on the ground that the petitioner's application is barred by time. Assailing the legality thereof this writ petition has been filed.

(2.) The contention of Sri Suryaprakasarao, the learned counsel for the petitioner runs two fold. Firstly that the petitioner made an application for the condonation of the delay under Rule 24 read with Rule 28 of the unamanded rules. There is no power for automatic deemed rejection. It is the duty of the State Government to pass an order condoning the delay and then pass appropriate order for valid reasons for refusing the renewal. The petitioner has, by operation of Rule 28, a right to further renewal under the lease granted to the petitioner in Chapter 8 clause (2), of the lease. He has a right for renewal of further period of 30 years. Failure to exercise the power by the Government in this regard is a failure to exercise the statutory duty cast under the Rules. I find it difficult to accept the contention. It is undoubtedly true that clause (2) of Chapter 8 of the lease the petitioner has been granted right to renewal for a further period of 30 years subject to the condition that he should make an application within six calender months with previous notice to the District Collector, Kurnool before the expiry of the grant. Rule 28(1) provides that an application for the renewal of a mining lease shall be made to the State Government in Form J at least twelve months before the date on which the lease is due to expire through such officer or authority as the State Government may specify in this behalf. Clause (6) of Rule 28 provides that if an application for the first renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by the State Government before the date of expiry of the lease, the period of that lease shall be deemed to have been extended by a further period of six months or ending with the date of receipt of the orders of the State Government thereon, whichever is shorter. Clause (6) of Rule 28 shall be taken only as an enabling right for the grantee to operate the mining lease up to six months after the expiry of the date of the lease unless an order is passed by the Government or ending with the date of receipt of the orders passed by the Government whichever is shorter. But that should not be taken to be a power given to the petitioner to make an application or a power to the Government to grant or refuse to grant or condone the delay. Rule 28(1) is a mandatory. The terms of the contract are subject to the rules. Therefore, any contract made should be consistent with the provisions of the rules. The contract was made before the rules have been made. Therefore, after the rules were made any conditions in the contract should be consistent with the rules. If it is so read then it is mandatory under Rule 28(1) that an application seeking renewal of a mining lease shall be made to the State Government in Form J atleast twelve months before the date on which the lease is due to expire Therefore, it is mandatory that an application shall be made before the expiry of 12 months. The word 'atleast' indicates that the outer limit is 12 months before the date on which the lease is due to expire. Any application made thereafter necessarily entails with dismissal since thereafter there is no obligation or power under law for consideration of an application renewal. Admittedly there is no provision provided under the rules tor condonation of the delay. Obviously realising this difficulty Sri P. Suryaprakasarao seeks to place reliance on a decision reported in Nand Lal Jain vs. State of Bihar . The facts therein are that on June 7, 1974 the Central Government entertained an application with a petition to condone the delay of third parties and that the delay was condoned. The application for renewal was entertained in the proceedings bearing No. MV-1 (556/78). But when the appellant therein sought for the same relief the delay was not condoned. Assailing the legality thereof when the writ petition was filed in the High Court, the High Court dismissed the writ petition. On appeal Their Lordships have held that when a similar application was entertained by the Central Government and the delay was condoned there were no special reasons shown by the Government to refuse to condone the delay in that instant case. Therefore, the delay was condoned and a direction was given to the Central Government to consider the case on merits for renewal and without throwing the application on the ground of delay alone. This is not an authority for the proposition that when the rules do not provide for any power to condone the delay the Government is empowered to entertain the application and to condone the delay. In that case obviously Their Lordships have extended the doctrine of invidious discrimination under Article 14 of the Constitution. When a similar discretion was exercised in favour of one candidate failure to exercise the same to another person who is similarly situated is obnoxious to equality enshrined in Article 14. That doctrine cannot be extended to the State directing to entertain an application contrary to the Statute and to condone the delay. Under those circumstances, I hold that in the absence of any power to condone the delay the State Government cannot entertain any application for the condonation of the delay. It is already held that when once the application is not filed within the limitation prescribed under Rule 28(1) then the application entails with dismissal and the question of consideration on merits does not arise. It would appear that the impleaded 4th respondent, N. Kanthareddy was granted a mining lease including the lands in question in G O. Rt. No. 392 d/September 16, 1985 and that the said lease has not been questioned in any proceedings. Therefore, though Sri Suryaprakasarao, learned counsel for the petitioner contends that the grant of the lease to the 4th respondent is not valid, in view of the procedural infraction under Rule 59 of the Rules it is unnecessary for me to go into that question, as the legality of the grant of lease in favour of the 4th respondent is not the subject matter of any proceedings before me.

(3.) It is next contended that in view of the amendments made to the rules introducing Rule 124-A through G. S. R. No. 86 dated February 10, 1987 the petitioner is entitled to be heard before refusal of the renewal. The petitioner is entitled to be heard if an opportunity of hearing is given; it is always open to the petitioner to bring such relevant facts to the notice of the State Government and the State Government would be at liberty to go into the question. This question also becomes an academic issue for the reason that on the date when the renewal application was refused or deemed to have been refused, this rule was not in vogue. Therefore, at that time, the question of granting a right to hearing does not arise. Even otherwise in view of the finding that an application for renewal having not been filed atleast 12 months before the date of expiry of the lease, the need to go into these questions does not arise, it is then contended that under Rule 24(1) read with Rule 24(3) as unamended the right to the deemed rejection is only in respect of fresh application but not the application for renewal. Therefore, the assumption of the petitioner as well as the Central Government that it must be deemed to have been refused is not valid in law. 1 find force in this contention. Clause (1) of Rule 24 postulates filing an application for grant of a mining lease and it shall be disposed of within twelve months from the date of receipt of the application. If such an application is not disposed of, it shall be deemed to have been refused by operation of clause (3) of Rule 24. As regards the renewal applications are concerned, such a deeming provision has not been provided prior to the amendment to clause (2) of Rule 24. But nonetheless the petitioner has chosen to file a revision before the Government and the Government now rejected the petition on the ground that it is barred by limitation. The operation of this order is in respect of clause (1) of Rule 28 of the Rules. Therefore, though I find that there is no deemed refusal the rejection of the petitioner's application on the ground that it is barred by limitation under Rule 28(1) is perfectly legal and valid. Accordingly it does not warrant interference. The writ petition is accordingly dismissed. No costs. Advocate's fee Rs. 500/-.