Remanded

N. Farid Basha v. The Government of India, rep. by its Secretary

Telangana HC18 Sept 2014WP/31867/2010

Case brief

AI extract

What is this about?

In a writ petition challenging the setting aside of a mining lease, the High Court held that the order was vitiated for failure to issue prior notice and afford an opportunity of hearing to the affected petitioner. The Court also noted the absence of reasons for the order. The impugned order was set aside and the matter was remanded for新鲜 consideration in accordance with natural justice.

What did the court decide?

Impugned order dated 29.11.2010 set aside; matter remanded to first respondent to dispose revision application after issuing notice and providing opportunity of hearing to petitioner and passing reaso

N. Farid Basha Vs The Government of India, rep. by its… — Land Acquisition | Telangana HC (2014)

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HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO

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WRIT PETITION No. 31867 OF 2010

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DATED 18^TH SEPTEMBER, 2014.

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BETWEEN N. Farid Basha

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…Petitioner And

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The Government of India, rep. by its Secretary, Ministry of Mines, New Delhi and ors

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…Respondents.

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HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO

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WRIT PETITION No. 31867 OF 2010

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ORDER:

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Heard the learned Counsel for the petitioner. Despite direction of this Court on 07.09.2014, neither record is produced by the first respondent nor representation is made on its behalf.

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No counter affidavit is filed by Respondents 2 to 4. However, as the Writ Petition is of the year 2010, the same is being disposed of basing on the material available on record.

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The petitioner states that he made an application for grant of mining lease for quartz over an extent of Acs.1521 in Sy.No.1 of Thumkunta village in Galiveedu Mandal, Kadapa District. After survey and inspection by the Department, area derived is an extent of 149.00 Hectors. The Mandal Revenue Officer inspected, demarcated and gave consent for Ac.397.00 cents. Thereafter the application of the petitioner was forwarded

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to the Director of Mines and Geology, third respondent, who recommended for grant of lease by forwarding the file along with other applications on 08.07.2008. Pursuant to the same, the Government passed orders in Memo No.9317/M.III(1)/2008-3, dated 22.11.2008 proposing to grant mining lease over an extent of 149.00 hectors to the petitioner for a period of twenty years subject to submission of approved mining plan under Rule 24 of the Mineral concession Rules, 1960 and clearance from A.P. Pollution Control Board. After receipt of the same, the Zonal Director of Mines and Geology approved the same by proceedings dated 09.01.2009. Thereafter, the Government granted mining lease vide G.O.Ms.No.42, dated 06.02.2009 for a period of twenty years subject to submission of consent from the AP Pollution Control Board and Environmental Impact Assessment Clearance from Government of India. After compliance of the same, the Government of India, Ministry of Environment passed orders on 30.04.2009 for public hearing and public hearing notice was published in two daily news papers by the AP. Pollution control Board on 21.06.2009 and thereafter hearings were held on 25.07.2009 wherein the District Collector and Senior Environmental Engineer submitted positive note and pursuant to the same, orders were passed thereon. Thereafter a lease deed was executed by the fourth respondent on behalf of the Government on 05.01.2010 granting lease for a period of 20 years and work orders were issued by the Assistant Director of Mines and Geology in proceedings dated 07.01.2010 for the lease from 05.01.2010 to 04.01.2020. While so, the petitioner received proceedings issued by the first respondent dated 30.11.2010 along with the revision application dated 26.04.2010 filed by the fifth respondent and a copy of the

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final order dated 29.11.2010 passed therein. In the said order, the lease granted in favour of the petitioner was set aside. Challenging the same, the present Writ Petition was filed.

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The fifth respondent filed counter affidavit stating that the writ petitioner is an impleaded party in the revision application filed by him and therefore he (writ petitioner) has knowledge of the filing of revision application. He stated that the mining application for extraction of quartz filed by the writ petitioner is subsequent to the application filed by him. He further started that he filed the application for grant of mining lease over an extent of 1500 acres in Sy.No.1 of Thumkunta village in Kadapa District on 29.06.2007; whereas the writ petitioner filed his application for the very same area on 05.09.2007.The fifth respondent also stated that the writ petitioner was granted lease on 06.02.2009, a lease deed was executed on 05.01.2010 by the writ petitioner and he filed revision application on 26.04.2010. He averred that non issuance of notice by the first respondent to the writ petitioner cannot curtail his right and he should not be made to suffer for the same. Ultimately he submitted that if the Court feels that opportunity was not provided to the writ petitioner, the first respondent may be directed to adjudicate the revision afresh by issuing notice to the writ petitioner and till then mining lease granted to the writ petitioner may be suspended.

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This Court by order dated 20.12.2010 granted interim suspension of the operation of the final order dated 29.11.2010 passed in the revision application preferred by the fifth respondent.

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The learned Counsel for the petitioner submitted that the revision application itself was filed without filing the application for condonation of delay and that no notice was issued to the petitioner while hearing the revision application filed by the fifth respondent.

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Pursuant to the aforesaid submission of the learned Counsel for the petitioner, this Court by order dated 08.08.2014 directed the first respondent to produce the record relating to the final order No.540/2010 dated 29.11.2010. However no record is produced by the first respondent and no representation is made on behalf of the first respondent.

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From a reading of the impugned order, it is axiomatic that the fifth respondent/revisionist filed the Revision Application on 26.04.2010 which was received on 29.04.2010 against the order in G.O.Ms.No.42 dated 06.02.2009 granting quarry lease in favour of the petitioner over an extent of 149.00 hectors in Sy.No.1 of Thumkunta village, Kadapa District and that during the conduct of survey on 10.11.2009 the fifth respondent/revisionist had shown boundaries of area applied by him, pursuant to which, the authorities had stated that some part of the area was already granted in favour of the writ petitioner. The impugned order also states that the application of the fifth respondent was prior to the application of the writ petitioner and hence he (fifth respondent) should have been granted mining lease. After narrating the facts, the revision filed by the fifth respondent was allowed through order dated 29.11.2010. The relevant portion of the order reads as follows:

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“05. The RA was heard on 11.10.10.Ld Advocate Sh.J.Rajanikanth appeared on behalf of the Revisionist. Sh. K.Adinarayana, Asst. Secretary and Sh.Rafi Ahmed, Joint director represented the State Government.

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06. Based on the arguments during hearing and record placed before the Revision Authority, it seems that the State Government has erred in granting Mining Lease to the later applicant. Accordingly, the impugned order is set aside.”

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The Revisional Authority assumes that the State Government had erred in granting mining lease to the later applicant (writ petitioner).

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A reading of the impugned order does not indicate that the writ petitioner was heard. The fifth respondent also states impliedly in his counter affidavit that writ petitioner was not heard.

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It is to be seen that the revision application was filed by the fifth respondent challenging the order in G.O.Ms.No. 42, dated 06.02.2009 wherein the mining lease was granted to the petitioner and hence the petitioner is certainly be the affected party and such an affected party should be issued prior notice and opportunity of being heard should be provided before deciding the revision application. The party who is affected by the order or decision should be made aware of passing of such order. Thus, the parties affected by order or decision have a reasonable opportunity of knowing of passing of the order and what it contains. As no such notice was given to the writ petitioner who is the affected party, the order passed by the

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Revisional authority is vitiated in law.

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Further it is to be seen that no reasons were assigned for setting aside the lease granted in favour of the writ petitioner. It has been laid down in a long line of cases that recording reasons is a facet to principles of natural justice. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice.

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It is well settled that the principles of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. The impugned order adversely suffers from principles of natural justice and the same cannot be maintained in the eye of law.

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In view of the foregoing discussion, the impugned order No.540/2010 dated 29.11.2010 passed by the first respondent is set aside and the matter is remanded to the first respondent for consideration of the revision application filed by the fifth respondent afresh after issuing due notice and providing opportunity of being heard to the writ petitioner and thereafter dispose of the same in accordance with law by passing a reasoned order.

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The Writ Petition is allowed to the extent indicated above. Miscellaneous petitions pending consideration if any in the Writ

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Petition shall stand closed. No order as to costs.

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JUSTICE A. RAMALINGESWARA RAO

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DATED 18^TH SEPTEMBER, 2014. Msnro

N. Farid Basha v. The Government of India, rep. by its Secretary

Case brief

What is this about?

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N. Farid Basha v. The Government of India, rep. by its Secretary

Case brief

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