Tawinderjit Mining And Construction Ltd. Having Its Registered Office At v. The State Of Bihar

Patna High Court CWJC No.13479 of 2013 (10) dt.18-12-2013 3 depositing the documents and prayed for condonation of delay of the same and extension of time for settlement. Ultimately, after some queries, the respondent No.4, Joint Secretary, Department of Geology and Mines by his letter dated 6.9.2010 condoned the delay under Rule 25 (1) of the aforesaid Rules and stated that the period of mining lease for five years shall start from the date of order of acceptance. Thereafter, the sale deed executed on

30.11.2010 was registered on 10.12. 2010 and possession of the mining lease area was delivered to the petitioner on 31.12.2010. Learned counsel for the petitioner submits that there was a delay of about nine months on the part of the petitioner in making and depositing the documents but in the case of similarly situated persons who had made a delay of up to eight months, the respondents have granted mining lease for a period of five years from the date of the execution of the lease, whereas in the case of the petitioner, whose delay exceeded the maximum delay in the other cases by a month only, the effective period of grant of lease has been cut short to less than three years without any justification for the same. It is further submitted by learned counsel for the petitioner that so far as mining lease is concerned, the respondents are obliged by Rule 52 (1) (i) of the Bihar Minor Mineral Patna High Court CWJC No.13479 of 2013 (10) dt.18-12-2013 4 Concession Rules, 1972 to grant lease for a period of not less than five years and thus no such discretion could have been exercised by the State Government while condoning the delay in the case of the petitioner to effectively grant the same for a period of less than three years. Learned Special P.P., Mines, on the other hand, is unable to contradict the factual position that in the case of similarly situated other persons where the delay had been up to eight months, the mining lease has been granted for the period of five years not from the date of sanction but from the date of execution of the agreement, since the specific stand made by the petitioner regarding discrimination has not been denied in the counter affidavit. Learned counsel, however, submits that under Rule 25 it is a case where condonation of delay in execution of the formal lease has been granted by the respondent authorities and, therefore, any such condonation would be subject to the condition that the authorities may put in the matter. I have considered the submissions of learned counsels for the parties. It is not in dispute that the respondents have allowed the mining lease for a period of five years to other similarly situated persons arising out of the same auction process, including in a Patna High Court CWJC No.13479 of 2013 (10) dt.18-12-2013 5 case in which the delay was to the extent of eight months in getting the formal lease executed, whereas in the case of the petitioner admittedly the delay was to the extent of nine months. Thereafter all the further delays took place on account of passing of the orders by the concerned authorities in granting the condonation. In such a situation, there was no occasion for the respondents to have treated the petitioner on a different footing than the other persons. The case is, thus, clearly one of arbitrariness and discriminatory exercise of the power of condonation, treating similarly situated persons differently in violation of Article 14 of the Constitution of India. Learned counsel for the petitioner in support of his stand of arbitrariness and discriminatory action has relied upon a decision of the Supreme Court in the case of Asha Sharma vs. Chandigarh Administration and others: (2011) 10 SCC 86, in paragraph Nos. 12, 13 and 14 of which it has been held as follows:- “12. Arbitrariness in State action can be demonstrated existence different circumstances. Whenever both the decision-making process and the decision taken are based on Patna High Court CWJC No.13479 of 2013 (10) dt.18-12-2013 6 irrelevant facts, while ignoring relevant considerations, such an action can normally be termed as “arbitrary”. Where the process of decision making is followed but proper reasoning is not recorded for arriving at a conclusion, the action may still fall in the category of arbitrariness. Of course, sufficiency or otherwise of the reasoning may not be a valid ground for consideration within scope of judicial review. Rationality, reasonableness, objectivity and application of mind are some of the prerequisites of proper decision making. The concept of transparency decision-making process of the State has also become an essential part of our administrative law.

13. The Government is entitled to make pragmatic adjustments and policy decisions, which may be necessary or called for under the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logical. The principle of reasonableness and non- Patna High Court CWJC No.13479 of 2013 (10) dt.18-12-2013 7 arbitrariness in governmental action is the core of our constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given case. Reference in this regard can also be made to Netai Bag v. State of W.B.

14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impressible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to Patna High Court CWJC No.13479 of 2013 (10) dt.18-12-2013 8 reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided.” The aforesaid proposition clearly applies to the case of the petitioner. Apart from the issue of discrimination, Rule 52 (1) (i) (c) is in the following terms:- “52 (1) (i)- For the purpose of grant of quarrying lease by auction in respect of the mineral notified under Rule 9A, the Collector shall notify the following particulars of the area. ( c ) The period of quarrying lease. Provided that the period of quarrying lease shall not be less than five years and extent of the quarrying lease area shall not be more than 2 (two) acre.” From a bare perusal of the said Rules, it is evident that Patna High Court CWJC No.13479 of 2013 (10) dt.18-12-2013 9 there is a statutory bar in granting of mining lease for a period of less than five years. Learned counsel for the petitioner submits that the language of the said Rule makes it mandatory in no uncertain terms and the said submission has to be accepted. It is not open to the respondents, once they have condoned the delay on the part of the petitioner to have granted the mining lease for a period of less than five years. However, I do not accept the submission of learned counsel for the petitioner that the lease shall start from the date of grant of possession of the leased area rather according to me, as is the usual practice also and followed in the cases simiularly situated, the period of lease shall start from the execution of the lease document, that is, from 30.11.2010. Thus, in the light of the aforesaid discussions, the writ application is allowed, the order dated 6.9.2010 is set aside to the extent that it lays down that the mining lease shall be for a period of five years from the date of sanction and it is directed that the mining lease in the case of the petitioner shall be treated to be for a period of five years from the date of execution of the lease agreement, i.e., from 30.11.2010. V.P.Sinha/- (Ramesh Kumar Datta, J)