PHULCHAND AGRAWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India for a writ of certiorari to quash the revisional order passed by the Union of India (Opposite Party No. 1) in exercise of powers vested in it under Chapter VII of the Mineral Concession Rules, 1960. The dispute relates to mineral rights in graphite over an area located in the District of Bolangir. On 14-10-1961, Mediratta (Opposite Party No. 3) applied for a prospecting licence over 833.53 acres. A fee of Rs. 24/- had been paid in support of the application as against the required fee of Rs. 32/-. On 27-10-1961, he moved the Collector to accept the deficit of Rs. 8/- (vide Annexure-B). The Collector, however, wanted the State Government's orders to be obtained in the matter and made a reference. On 28-12-1961, Mediratta deposited the said amount. In the meantime, on 2-11-1961, Phulchand (petitioner) applied for a similar prospecting licence in respect of 748.16 acres. 272.40 acres were a common area in both these applications. As his application was not disposed of by the State Government, against the deemed refusal, Mediratta moved the Union Government in revision in April, 1963, and on 20th of October, 1964, the Union Government directed the State Government to reconsider the application dated 14-10-1961 for grant of a prospecting licence for graphite over an area of 833.53 acres in village Thalka etc., and to pass final orders thereon within nine months of the date of the receipt of the order by it (vide Annexure-5). In January, 1965, the State Government wrote a letter to Mediratta to find out if he was prepared to take a prospecting licence over 365.00 acres. Mediratta moved the Union of India in revision again in February, 1965. In May, 1965, the State Government offered 678.08 acres to Phulchand saying that that was the available area for grant to him. In June, 1965, the State Government actually directed a prospecting licence to be granted to Phulchand for that area (vide Annexure-1). In May, 1966, the Union Government rejected Mediratta's revision application by saying

(2.) Three counter-affidavits have been filed - one by the Union of India, the second by the State of Orissa and the third by the successful party before the Union of India - Mediratta. Mediratta has also filed an additional counter-affidavit. Thereafter the petitioner came with a further affidavit. The Union of India had tried to Justify its order by taking the stand that the Central Government have rightly come to the conclusion that Mediratta's P. L application dated 14-10-1961 although not complete in the sense that fee paid into the treasury fell short by Rs. 8/- yet, the State Government itself by giving a chance to the petitioner to rectify this mistake, acknowledged implicitly that it had in its hand an application otherwise valid. Hence the appropriate date for the purpose of priority under Section 11 (2) of the Act was 14-10-1961 and not 28-12-1961 as interpreted by the State Government. The order of the State Government permitting the applicant to make good the deficit in the amount of fees originally paid into the treasury has nothing to do with the submission of the application by the respondent No. 3 (Mediratta) which was done on 14-10-1961. The State Government could, if it so wished, have refused the application dated 14-10-1961 as being imperfect. But since it did not do so and permitted the application to remain under consideration, it recognised implicitly the request of the petitioner as an applicant. Once the application dated 14-10-1961 was taken to be a valid one Mediratta was entitled to priority. The State Government (Opposite Party No. 2) took the stand that the application of Mediratta made on 14-10-1961 was defective and became complete and valid only with effect from 28-41-1961. Phulchand's application being dated 2-11-1961, he was entitled to priority as recognised by the Statute and therefore, in regard to the overlapping area of 272.40 acres, Phulchand had a preferential claim. When on an earlier occasion the Union of India in exercise of its revisional power directed the State Government to dispose of the application of Mediratta, on the principle indicated above, Mediratta was offered the remaining available area. Mediratta has taken the stand that the defect in the application dated 14-10-1961 did not make it a nullity. He had offered to make good the deficit in the fee some time before Phulchand came into the scene by making his application dated 2-11-1961. The delay in acceptance of the fee was on account of the Collector making a reference to the State Government and the Director of Mines taking time in clarifying the position. As the application dated 14-10-1961 was not a bad one in law, with removal of the defect, Mediratta became entitled to the priority and the Union Government has rightly accepted that stand of his.

(3.) On the contentions of the parties, the sole question that has to be considered is as to whether the application dated 14-10-1961 was a nullity on account of the prescribed fee having not been paid. The answer to the question would very much depend upon whether the prescriptions in Rule 9 of the Mineral Concession Rules of 1960 are mandatory or directory. Mr. Rath for the petitioner has contended that the provision is mandatory while Mr. Mohanty for the opposite party no. 3 has taken the stand that it is directory. Both sides relied upon a number of authorities in support of their respective contentions.