Allowed

Bhavishya Kumar v. The State Of Bihar and Ors.

Patna HC19 Nov 2013CWJC/8491/2013

Case brief

AI extract

What is this about?

The Patna High Court quashed a mining lease cancellation order for violating natural justice and statutory procedure. The court held that the Collector failed to issue Section 114A notice or a show-cause notice before cancelling the lease. The lease was deemed subsisting, and a nine-month extension was directed if the area is not leased elsewhere.

What did the court decide?

Quashed the cancellation order; the lease is deemed subsisting until properly cancelled; lease period extended by nine months if not leased to another.

Bhavishya Kumar Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No 8491 of 2013

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====================================================== Bhavishya Kumar S/O late Yogendra Mandal, R/O Village+PO+PS - Shahkund, District- Bhagalpur .... .... Petitioner/s Versus 1. The State Of Bihar, Through the Principal Secretary Department of Mines and Geology, Government of Bihar, Patna 2. The Commissioner Mines and Geology-Cum-Divisional Commissioner, Bhagalpur 3. The Collector, District- Bhagalpur 4. The Director Department of Mines and Geology, Government of Bihar, Patna 5. The Mines Development Officer, Office of District Mining Department, Bhagalpur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : M/s Gyan Prakash Ojha, Kanchan Srivastava & D K Sinha, Advocates For the Respondent/s : Mr Rajendra Prasad, Spl PP, Mines ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 5 19-11-2013 Counter affidavit and rejoinder being on record, with consent of parties, the writ petition is being disposed of at this stage itself. Petitioner is aggrieved by the communication of the Mines Development Officer, Bhagalpur as contained in Annexure 9 of the writ application being letter No 77M dated 22.01.2013 by which his minor mineral mining lease of Mauza – Jagariya, Plot No 1971/P admeasuring about 1.80 acres at Jagariya in the district of Bhagalpur has been cancelled allegedly by the Collector. The

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Patna High Court CWJC No.8491 of 2013 (4) dt.19-11-2013

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grievance of the petitioner is that under the Bihar Minor Mineral Concession Rules, 1972 (Rules), there are two requirements before lease for minor mineral can be cancelled. First a notice has to be issued for rectification of breach and then after hearing the parties, the Collector may cancel the lease. It is submitted that the notice to correct the breach of terms of lease is nothing but what is contemplated by Section 114A of the Transfer of Property Act. It is then followed by a notice to be issued by the Collector and the Collector, after hearing the matter, has to pass the order. This is the true spirit of Rule 24 (3) of the Rules which reads as under:

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“24. Right to [surrender]

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lease.- (1) … … … (2) … … …

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(3) The Collector may determine the lease if the lessee commits any breach of the terms and conditions of the mining lease after the applicant is given reasonable opportunity of being heard.”

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It is submitted that in the present case neither any notice was issued by the Collector in terms of Section 114A of the Transfer of Property Act nor was any notice issued by the Collector to show cause why the lease be not cancelled nor any hearing provided by the Collector nor has any order of the Collector passed in terms of Rule 24 (3) of the Rules aforesaid

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Patna High Court CWJC No.8491 of 2013 (4) dt.19-11-2013

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being brought on record. In such facts, the entire exercise is wholly without jurisdiction.

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In the counter affidavit, nowhere it is stated that any notice was ever issued by the Collector. It has no where stated that any hearing was conducted by the Collector. The order of the Collector has also not been brought on record. The only document brought on record in the counter affidavit is a notice rectifying a breach and the communication of cancellation of lease as issued by the District Mines Development Officer.

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Thus, it stands unrebutted that at no stage, Collector assumed jurisdiction in the matter. What the Rules and the terms of lease contemplate is that first the party must be noticed in terms of Section 114A of the Transfer of Property Act and one of the conditions of lease is that if the breach is remediable, it must be remedied. Once it is found that it is not being remedied then a show cause for cancellation can be issued but such jurisdiction has to be assumed by the Collector first. Thus, the show cause must emanate from the Collector himself. Thereafter, the Collector has to hear the matter and pass orders accordingly. These cannot be delegated as they are statutory functions. They have to be performed by the Collector himself. Thus, in my view, the entire exercise is without jurisdiction. The order of cancellation of lease

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Patna High Court CWJC No.8491 of 2013 (4) dt.19-11-2013

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4 cannot, thus, be sustained. Annexure 9 is, thus, quashed. It would be deemed that petitioner’s mining lease is subsisting till it is cancelled in accordance with procedure established by law.

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Mr Gyan Prakash Ojha, learned counsel for the petitioner then submits that for the breaches, as noticed in the order, cancellation of lease is an extreme punishment. They are traverse and are too technical. Mr Ojha further submits that the true reason for cancellation of lease is stated in paragraph 10 of

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the counter affidavit which reads as under:

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“10. … … … The petitioner had never made approach to the office of the respondent for payment of 5^th instalment.”

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Be that as it may, these are matters for the authorities

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to consider as and when occasion arises but this Court may notice one aspect of the matter. Merely because a power has been conferred on a person, it does not mean that he can exercise this power arbitrarily at his sweet will. There must be sufficient condition existing which domains such extreme actions. The power to cancel a lease is discretionary. Discretion has to be exercised in a non-arbitrary manner.

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Mr Ojha, learned counsel for the petitioner draws attention of this Court to the order passed on 16.05.2013 in this

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Patna High Court CWJC No.8491 of 2013 (4) dt.19-11-2013

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writ petition when prayer for interim relief was made. This Court, by the said order, made it clear that if petitioner ultimately succeeded, he will be at liberty to make prayer for consequential relief. He prays that petitioner has been restrained from operating the lease for a period of almost nine months as the cancellation purports to be of 22.01.2013. He may be permitted to run the lease for a further period of nine months after its expiry otherwise it will cause irreparable loss to him. Learned counsel for the State submits that may be that lease area may have already been settled with another lessee. Mr Ojha for the petitioner disputes.

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Be that as it may, considering the facts and circumstances aforesaid, I direct that in case the lease area is not leased out to any other person then the period of lease shall stand extended by a period of nine months because of non-operation of the lease, in the circumstances noted above.

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The writ petition is, accordingly, disposed of.

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M.E.H. /-

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(Navaniti Prasad Singh, J)

Bhavishya Kumar v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Bhavishya Kumar v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

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