ORDER
J.V. Gupta, J.
1. Petitioner Shish Pal Singh applied on 2nd Feb. 1984 for the gram of a mining lease over an area 3358 Kanals in village Pali, District Faridabad for extraction of silica sand. China-clay and fire clay minerals and quartz under the Mineral Concession Rules, 1960 framed under the Mines and Minerals (Regulation and Development) Act, 1957 by the Central Government. His application was rejected on 1st Apr. 1985 on the ground that the area applied for by him had already been leased out to Shri S. P. Sethi, added-respondent, on 30th Oct. 1984 on the basis of his application dt. 26th Sept. 1983. The said order of the State Government was challenged by the petitioner before the Central Government by filing a revision application under Section 30 of the above said Act read with Rules 54 and 66 of the Mineral Concession Rules, 1960. The Central Government vide their order dt. 8th May, 1986 (copy Annexure P1) set aside the order granting additional lease to Shri S. P. Sethi and directed the State Government to grant the lease for the area in question to the petitioner (Shish Pal Singh) for a period of 10 years. Shri S. P. Sethi added respondent challenged the abovesaid decision of the Central Government before the Delhi High Court by filing C.W,P. No. 1301 of 1986 and obtained an ex parte order of stay of dispossession. The writ petition was finally dismissed on 5th Mar. 1987.
2. The petitioner filed the present writ petition on 19th Mar. 1987 for a direction to the State Government to implement the orders of the Central Government dt. 8th May, 1986 (Copy Annexure P1) allowing his revision application. At the time of the motion hearing on 3rd Aug. 1987 the Bench passed the following order: —
“The petitioner has sought a direction to
the respondent State Government to implement the decision Annexure P/1, whereas on behalf of the respondent-State Government, it has been asserted that Annexure P/1 is not required to be complied with in view of Annexure R/4 which has been passed in exercise of power under Section 4A of the Mines and Minerals (Regulation and Development) Act, 1957 (for short ‘the Act’). It also transpires that this order was challenged in Delhi High Court and Delhi High Court has since quashed this order of the State Government on the ground that the said order had been passed without complying with the requirement of prior notice as envisaged by Section 4A of the Act. The State Government has challenged this judgment in the Supreme Court and the matter is pending in the Supreme Court. The learned counsel for the respondent-State has, however, stated that qua the petitioner, fresh order shall be passed after giving him due notice.
Admitted. The petition requires to be disposed of early, so, we direct that this petition be set down for hearing within six months. The respondent shall be well within its rights to issue notice under Section 4A of the Act, and take a decision in the matter, if so advised.”
The State Government after issuing a notice to the petitioner dt. 17th Dec. 1987, calling upon him to file his objections, if any, passed the orders on 29th Feb. 1988 (copy Annexure P5 with the amended writ petition challenging the said order). The last para of the said order reads as under : —
“Whereas your reply has been considered and found to be without merit as you have failed to justify your claim for the grant of mining lease over an area in question, State Government have decided to reject your claim and to reserve this area under Rule 58 of the Mineral Concession Rules, 1960 for the grant of mining lease of silica sand to Haryana Minerals Limited in view of the directions of Central Government as conveyed vide their letter No. 8(33)/84-MV (Ptd) dt. 8-7-1985.”
As observed earlier, on the passing of the said order the petitioner was allowed to amend his writ petition and to challenge the said
order. After the said order was passed, notification dt. 12th May, 1988 was issued by the State Government in exercise of the powers conferred by Rule 58 of the Mineral Concession Rules, 1960. A copy of the gazette publication was placed on the record.
3. No further amendment of the writ petition was sought in order to challenge the said notification issued by the State Government, as, according to the learned counsel for the petitioner, no such notification could be issued at this stage, when there was already an order of the Central Government dt. 8th May, 1986 (Copy Annexure P1) in favour of the petitioner. According to the learned counsel for the petitioner, such a reservation, if any, under Rule 58 could be made at the initial stage before the licence was granted either to Mr. Sethi, added respondent, by the State Government, or to the petitioner by the Central Government vide order dt. 8th May, 1986. Any reservation made after the said order was mala fide and without jurisdiction. Moreover, argued the learned counsel, once the State Government initially decided to give the land in dispute on lease, the powers under Rule 58 of the Mineral Concession Rules were exhausted and could not be exercised subsequently. In support of this contention he referred to S. Lal and Co. Ltd v. Union of India, AIR 1975 Patna 44. He further argued that even the order passed under Section 4A (Copy Annexure P5) was wrong and illegal because the said order could be passed by the Central Government after consulting the State Government under Sub-section (1) of Section 4A of the Mines and Minerals (Regulation and Development) Act, 1957. It was the Central Government which could request the State Government to make a premature termination of a prospecting licence or mining lease in respect of any mineral other than a minor mineral in any area or part thereof. According to the learned counsel, no such request was made by the Central Government and, therefore, the order dt. 29th Feb. 1988 was without jurisdiction. Similarly, the notification issued subsequently thereto under Rule 58 of the Mineral Concession Rules, 1960, reserving the area, was also an afterthought, illegal and beyond the scope of
the Act. Thus, argued the learned counsel, the petitioner was entitled to implement the order of the Central Government dt 8th May, 1986 (Copy Annexure P1). In support of this contention he referred to Dharam Chand Jain v. State of Bihar, AIR 1976 SC 1433. Reference was also made to P. Sambamurthy v. State of Andhra Pradesh, AIR 1987 SC 663, to contend that the State Government has no powers to modify or annul the order of the Central Government passed under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as ‘the Act’). It was also brought to the notice of this Court that Civil Writ Petition No. 2174 of 1986, filed by Mr. Section P. Sethi, against the order dt 29th Sept. 1986 passed under Section 4A of the Act, was allowed by the Delhi High Court on 4th Dec. 1986 and the appeal filed by the State of Haryana against the said order of the Delhi High Court has been dismissed by the Supreme Court on 6th May, 1988 in Civil Appeals Nos. 1472-77, of 1987 (State of Haryana v. Ram Kishan (reported in AIR 1988 SC 1301).
4. Learned Advocate General for the State of Haryana submitted that after the issuance of the notification under Rule 58 of the Mineral Concession Rules (hereinafter referred to as ‘the Rules’), the petitioner had no claim and, therefore, the writ petition was liable to be dismissed on this short ground alone. He refuted the argument of the petitioner that this notification could not be issued at this stage. In support of this contention he referred to Amritlal Nathubhai Shah v. Union Govt. of India, AIR 1976 SC 2591. According to the learned Advocate General, the State has every right to reserve the area and to decide that it is not to be leased out. Since no lease has so far been granted in favour of the petitioner, the area has rightly been reserved by the State Government by issuing a notification under Rule 58 of the Mineral Concession Rules, 1960 (hereinafter referred to as ‘the Rules’). He also referred to Rule 59, contending that once the notification is issued, no licence could be granted in favour of any person.
5. I have heard the learned counsel for the parties. It will be useful and relevant to reproduce the provisions of Section 4A, Sub-section (1) of the Act, substituted by Amending Act No. 37 of 1986, which reads as under :–
“4A. Termination of prospecting licences or mining leases.– (1) Where the Central Government, after consultation with the State Government, is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution, or to ensure safety of buildings, monuments or other structures or for conservation of mineral resources or for maintaining safety in the mines or for such other purposes, as the Central Government may deem fit, it may request the State Government to make a premature termination of a prospecting licence or mining lease in respect of any mineral other than a minor mineral in any area or part thereof, and, on receipt of such request, the State Government shall make an order making a premature termination of such prospecting licence or mining lease with respect to the area or any part thereof.”
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From the language of Sub-section (1) it is quite clear that it is the Central Government who can take the initiative and after consulting the State Government decide to terminate the prospecting licences or mining leases and then request the State Government to make a premature termination of a prospecting licence or a mining lease. The order Annexure P5 does not mention that any such request was made by the Central Government to the State Government. That being so, the order passed under Section 4A is illegal and without jurisdiction on the face of it Even the learned Advocate General, Haryana did not rely on the said order dt 19th Feb. 1988 passed under Section 4A of the Act. His main reliance was on the notification dt 12th May, 1988 issued under Rule 58 of the Rules.
6. Under these circumstances, the main controversy between the parties, which requires to be resolved, is whether the
notification dt. 12th May, 1988 issued by the State Government after the orders of the Central Government dt. 8th May, 1986, directing it to grant the lease of the area in question to the petitioner for a period of 10 years is valid or not. At this stage Rule 58 of the Rules be reproduced as under :–
“58. Reservation of areas for exploitation in the public sector etc.– The State Government may, be notification in the Official Gazette, reserve any area for exploitation by the Government, a Corporation established by any Central, State or Provincial Act or a Government company within the meaning of Section 617 of the Companies Act, 1956 (1 of 1956).”
There is no dispute that the State Government is competent to reserve the area under the said rules, but the question still remains whether it could reserve the area at the stage when the Central Government had already passed orders on 8th May, 1986 in favour of the petitioner. In M/s Section Lal and Co.’s case (AIR 1975 Patna 44) (supra) similar question came up for consideration. There the petitioner’s application for grant of mining lease in response to the Bihar Government notification issued under Rules 58 and 59 of the Mineral Concession Rules, 1960 was refused The revisional order passed by the Central Government under Rule 55 directed the State Government to grant the said lease to the petitioner. But the State Government by issuing notification reserved the unreserved mining areas for exploitation in public sector. In these circumstances it was held that disobedience of the revisional order would be hit by proviso (b) to Article 298. The executive power of the State was subject to legislation by the Parliament. The revisional order of the Central Government was in exercise of the power granted to it under the statutory rules. It was further held that the State Government had no power to withdraw its notifications because of the final order passed by the Central Government under Rule 55. No meaningful argument could be raised on behalf of the State Govt. to challenge this proposition of law as enunciated in the said judgment.
7. On the face, it appears that the said
notification was issued to do away with the order of the Central Government passed under Section 30 of the Act (copy Annexure P1). It is virtually nullifying the said order by, resorting to the provisions of Rule 58 of the Rules and issuing a notification thereunder. Under these circumstances the said notification had no legal sanctity as to deprive the petitioner claiming implementation of the order of the Central Government dt. 8th May, 1986. The judgment reported as Amritlal Nathubhai Shah v. Union Govt. of India, AIR 1976 SC 2591, relied upon by the learned Advocate General is clearly distinguishable and has no application to the facts of the present case. Therein an application for grant of licence was filed after the reservation was made by the State Government under Rule 58, whereas in the present case the said reservation is being made now during the pendency of this writ petition, when the Central Government had already directed the State Government to issue licence in favour of the petitioner vide order dt. 8th May, 1986. As observed earlier, this notification has been issued with an intention to nullifying the said order, for which the State Government had no jurisdiction. No other argument was raised on behalf of the State, except placing reliance on the said notification.
8. Under these circumstances, the petitioner is entitled to a writ of mandam us as held by the Supreme Court in Dharam Chand Jain’s case (AIR 1976 SC 1433) (supra), wherein it was held that when the Central Government allows a revisional application and directs the State Government to grant licence to the applicant, the order must be deemed to be an order passed by the Central Government granting the prayer of the applicant for issue of the mining lease. The order of the Central Government, therefore, leaves no discretion to the State Government to refuse to grant the mining lease to the applicant. It was further observed by the Supreme Court : “In fact to take the view that the State Government could decline to carry out the Order of the Central Government on ground which it thinks proper would be subversive of judicial discipline.
Therefore, when the applicant preferred a revision application to the Central Government against the refusal of the State Government to carry out the order of the Central Government by rejecting his application, there was absolutely no legal justification at all for the Central Government to go back upon its earlier order even on the ground which came into existence subsequent to the making of the earlier order. The earlier order of the Central Government stood unvaried and unvacated and the State Government was bound to implement it and, therefore, the Central Government was in error in upholding the action of the State Government rejecting the revision application filed by the appellant.” It may again be reiterated that there could be termination of prospecting licence or mining lease as provided under Section 4A of the Act but that is at the instance of the Central Government and the State Government could not terminate the same of its own.
9. As a result of the above discussion, this petition succeeds and the State Government, respondent No. 1, is directed to implement the order of the Central Government (Annexure P1) dt. 8th May, 1986 within two months. The petitioner will also be entitled to the costs of this writ petition.