H.T. Narendra Prasad ORDER
Abhay Shreeniwas Oka, C.J.
1. Heard the learned Senior Counsel appearing for the petitioner, the learned Additional Government Advocate appearing for the first respondent and the learned counsel appearing for the second respondent. Considering the narrow controversy involved, the matter is forthwith taken up for final hearing.
2. The challenge in this petition under Article 226 of the Constitution of India is to the order dated 29th May 2013 passed by the first respondent which has been confirmed by the second respondent by order dated 1st January 2016 in the revision application filed by the petitioner.
3. By order dated 29th May 2013, the first respondent rejected the application made by the petitioner for renewal of prospecting licence. On the earlier date, a submission was canvassed across the bar that the said order was passed by the first respondent without giving an opportunity of being heard to the petitioner as required by sub-rule (1) of Rule 12 of the Mineral Concession Rules, 1960 (for short 'the said Rules'). Today, the learned Additional Government Advocate appearing for the first respondent, on instructions, states that there is no material on record to show that an opportunity of personal hearing was granted to the petitioner before passing the order dated 29th May 2013.
4. The learned counsel appearing for the second respondent invited our attention to the order of the revisional authority and the findings recorded therein. He submitted that one of the findings is that requisite documents were not produced by the petitioner. He submitted that passing an order of remand to the first respondent will be an exercise in futility as the petitioner will not be in a position to produce any document before the first respondent. He also invited our attention to the findings recorded in the order of the revisional authority including the finding in paragraph 9. He submitted that the issue based on the decision of the Andhra Pradesh High Court is pending before the Apex Court.
5. We have considered the submissions. Rule 12 of the said Rules reads thus:
"12. Refusal of application for a prospecting licence
(1) The State Government may, after giving an opportunity of being heard and for reasons to be recorded in writing and communicated to the applicant, refuse to grant or renew a prospecting licence over the whole or part of the area applied for.
(1A) An application for the grant or renewal of a prospecting licence made under rule 9 shall not be refused by the State Government only on the ground that Form B or Form E, as the case may be, is not complete in all material particulars, or is not accompanied, by the documents referred to in clauses (d), (e), (f) and (g) of sub-rule (2) of the said rule.
(1B) Where it appears that the application is not complete in all material particulars or is not accompanied by the required documents, the State Government shall, by notice, require the applicant to supply the omission or, as the case may be, furnish the documents without delay and in any case not later than thirty days from the date of receipt of the said notice by the applicant.
(2) An application for the grant of a prospecting licence shall not be refused on the ground only that, in the opinion of the State Government, a mining lease should be granted for the area for which the application for a prospecting licence has been made.
PROVIDED that where applications for the grant of prospecting licence and applications for the grant of mining lease in respect of the same area are received on the same date or on different dates within a period of thirty days, the applications for the grant of mining lease shall, if the area was previously held and worked under a mining lease, be disposed of before the application for the grant of prospecting licence are considered:
PROVIDED FURTHER that the applications received for grant of prospecting licence shall be liable to be considered only if they have not been already disposed of."
(underline supplied)
6. The Rule Making Authority has chosen to specifically provide that the power of rejection or refusal can be exercised by the State Government after giving an opportunity of being heard. We cannot accept the narrow interpretation put by the second respondent that 'opportunity of being heard' may not be necessarily 'opportunity of being personally heard'.
7. The words 'after giving an opportunity of being heard' were inserted by the amendment dated 2nd May 1979. Earlier sub-rule (1) of Rule 12 simply provided that the State Government may, for reasons to be recorded in writing and communicated to the applicant, refuse to grant or renew prospecting licence. Therefore, the Rule Making Authority has added the aforesaid words which clearly imply that the intention was to provide an opportunity of being heard as the rights of the applicant are affected if the application for grant or refusal of prospecting licence is rejected.
8. Now turning to the submissions of the learned counsel for the second respondent, we must note here that in writ jurisdiction under Article 226 of the Constitution of India, we are examining the decision making process adopted by the respondents. We are not examining the merits of the decision. If there is a clear breach of the rules of natural justice in contravention of the express provision in Rule 12(1) committed by the respondent, the said error will have to be corrected as it is a very serious flaw in the decision making process adopted by the first respondent. It is not for us at this stage to decide the issue whether the petitioner could have produced the documents before the first respondent especially, when opportunity of being heard has been admittedly denied to the petitioner. The revisional authority has gone to the extent of holding that an opportunity of being heard does not include personal hearing. Hence, the impugned orders will have to be set aside and the matter will have to be remitted for reconsideration of the first respondent.
9. Accordingly, we pass the following order:
(i) Both the impugned orders are quashed and set aside and the application made by the petitioner for renewal of prospecting licence is remanded to the first respondent;
(ii) The first respondent shall pass appropriate order in accordance with law on the renewal application after giving an opportunity of personal hearing to the petitioner;
(iii) An appropriate order in accordance with law shall be passed within a period of two months from today;
(iv) We make it clear that we have made no adjudication on the merits of other prayers except prayers 1 and 2 and all issues are left open.
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