1. Rule.
Mr. PS Champaneri, learned Assistant Solicitor General has waived service of Rule on behalf of respondent No.1 and Mr. Rohan Yagnik, learned AGP waives service on behalf of respondent Nos. 2 and 3. With consent of learned Advocates appearing for the contesting parties, and since Notice for final disposal was issued the matter is taken up for hearing and final decision today.
2. Heard Mr. Nanavati, learned Senior Counsel with Mr. Gandhi, learned Advocate for petitioner and Mr. Champaneri, learned Assistant Solicitor General for respondent No.1 and Mr. Rohan Yagnik, learned A.G.P. for respondent Nos. 2 and 3.
3. The cause list shows that respondent Nos. 2 and 3 have been served with the process directly. The Government Pleader has entered appearance for respondent No.3. So far as respondent No.1, Union of India is concerned, affidavit of service has been filed claiming that the process has been served qua respondent No.1 on 26th March 2012. Mr. Champaneri, learned Assistant Solicitor General has appeared for respondent No.1. However, he has submitted that he has appeared only because advance copy of the petition has been served on him, however, he has not received any instruction from respondent No.1. Appearance note by Mr. Champaneri, learned Assistant Solicitor General has been filed for respondent No.1.
4. The petitioner has brought under challenge order dated 14th February 2012 passed by Revisional Authority. It is claimed that the impugned order is non-speaking and unreasoned order and though the contentions raised by the petitioners have been mentioned in the order, none of the contentions have been dealt with and any reason as to why the contentions have not been accepted and have been rejected are not recorded. Therefore, order suffers from error of non-application of mind.
5. It is further contended that the Revisional Authority has observed in the order that, "However, State Government is not debarred from taking holistic view in respect of issues raised above i.e. specific gravity, average depth, cost of mineral etc. RA is accordingly dismissed."
6. In view of the said observations it is contended that though the Revisional Authority has made the said observation, the matter is not formally remanded to the State Government and that therefore the State Authority can not, on its own, again take up the matter and reconsider the issue and/or pass fresh order, more particularly when the revision application is, according to the impugned order, dismissed and not remanded. On the strength of such contention the order of Revisional Authority is challenged and it is claimed that the said aspect also demonstrates that the order is passed without proper consideration and without application of mind.
7. As mentioned above, Mr. Champaneri, learned Assistant Solicitor General has submitted that he has not received any instruction from respondent No.1 so far as the merits of the contention raised by the petitioner is concerned. He, however, could not dispute the contention that the order does not reflect any reason and it is a non-speaking and unreasoned order.
8. On perusal of the record and particularly the memo of revision application (Annexure-S, Page 82 to 100), it appears that the petitioner herein i.e. the revisionist raised diverse contentions before the Revisional Authority including the contentions which are mentioned by the Revisional Authority in the impugned order dated 14.02.2012 viz.:
"7. ...........(I) Mining lease in question consist of five pits divided into 12 blocks, out of which Pit No.1 has 6 blocks, Pit No.2 has 2 blocks, Pit No.3 has 2 blocks, Pit No.4 has one block and Pit No.5 has one block. Without any basis, the average depth of all these pits was taken to be 4.25 (II) The specific gravity of mineral was taken as 1.17 whereas the specific gravity is 2.20 to 2.50. Even if specific gravity is taken as 2.2, there would not be any dispute in the tonnage dispatched. (III) The rate of mineral taken as Rs.315/-MT is also incorrect."
9. The only observation made in the order with reference to the contentions raised by the petitioner which can be found in the order are:-
"The representative of State Govt. has stated that partners of the revisionist has already accepted that they encroached the adjacent land to the mining lease area and now as directed, they have stopped mining in these area. If the statement was taken by coercion as claimed, it was open for them to take legal recourse separately but till date no such action has been taken, which implies that revisionist was engaged in illegal mining.
10. Mr.
Nanavati, learned Senior Counsel has contended on behalf of the petitioner that the first adjudicating authority took into account "specific gravity" of mineral not on the basis of the actual examination of the excavated mineral but on the basis of a circular which describes, in general, specific gravity of mineral. Such generalized specific gravity of mineral could not have been taken into account for the purpose of determining as to whether any illegal and unauthorized mining had been undertaken or not and/or for determining the quantum of alleged unauthorized excavation. It is also submitted by learned Senior Counsel that it is not the case of the original authority that the petitioner has not paid royalty in respect of the total quantity of excavated mineral. The original authority raised allegation against the petitioner that on measurement of the pits (i.e. the length X depth X breadth of the pits) it appeared that the quantity of mineral claimed to have been excavated by the petitioner does not tally with what could have been actually excavated from the pits. On this count, the learned Senior Counsel for the petitioner contended that on such presumption and assumption, it could not have been assumed by the authority that petitioner had indulged into any unauthorized excavation, more particularly when the respondent authority noticed and recorded that the petitioner has paid royalty on the entire material which was excavated and transported.
11. Besides the said contention, the petitioner appears to have raised various other contentions. However, the Revisional Authority has recorded the main contention of the petitioner in para 7 of the order but even those contentions have not been dealt with properly.
12. What is relevant and important is the fact that after recording three contentions, the Revisional Authority has not dealt with even the said contentions.
13. There is no discussion as to the merits of the said contentions and any reasons for not accepting and rejecting the said contentions are not recorded.
14. It emerges from perusal of the order that though the Revisional Authority has taken note of the main-major contentions, it has failed to deal with the same in light of the material on record.
15. There is no discussion about the material or documents on record and there is also no discussion about the merits and demerits of the contentions. Any cogent reasons based on the material on record for not accepting the contentions including the submission there was no voluntary admission by any authorised officer of petitioner, as alleged by State, have not been recorded. It, therefore, emerges that the order does not reflect process of reasoning and/or reasons in light of which the contentions have been rejected.
16. In that view of the matter the petitioner appears to be justified in contending that the impugned order is a non-speaking and unreasoned order.
17. The Apex Court has time and again emphasised that reasoning is the heart of the order and that therefore the orders which are appealable and/or which are amenable to challenge before higher forum or in writ jurisdiction, ought to contain reasons in support of the decision recorded in the order. However, in present case, the order does not reflect any cogent reason and it does not reflect process of reasoning.
18. Furthermore, the authority itself has observed that the State Government can take holistic view in respect of issues raised by the petitioner as regards the specific gravity, average depth and cost of mineral etc.
19. The said observation goes to show that even the Revisional Authority felt that the order passed by the first adjudicating authority was wanting in respect of proper consideration and determination of the issues.
20. In such circumstances, the Revisional Authority could have considered the option, if it was found necessary and appropriate by the Revisional Authority, of remanding the matter to the first adjudicating authority for re-consideration of such issues. When the Revisional Authority dismissed the application but did not remand the matter then the first adjudicating authority would have no power or authority to reopen the issue for re-examining the aspects mentioned in the order by the Revisional Authority and take any fresh decision.
21. Therefore, though such option is left open, it has become ineffective since any order of formal remand has not been passed.
22. This Court, at this stage, cannot assume that the Revisional Authority was of the view to remand the matter. It is only the Revisional Authority who can consider this aspect and take decision and pass direction as may be considered appropriate. This Court would not usurp the power of Revisional Authority.
23. In view of the foregoing discussion, it appears that since the impugned order of Revisional Authority does not reflect any reasons in support of the decision of rejecting the contentions raised by the petitioner, it is necessary and appropriate that the Revisional Authority may record reasons in support of its decision and for that purpose the matter is required to be remanded to the Revisional Authority for fresh order. Under the circumstances and for the reasons mentioned hereinabove, only on the aforesaid limited ground, i.e. the order being unreasoned and non-speaking, it is set aside.
24. It is clarified that the Court has not expressed any opinion about the merits or demerits of various contentions raised by the petitioner, lest any observations made by this Court should affect the reasoning of the Revisional Authority. The Revisional Authority would record its own independent reasons which the Authority considers appropriate and just.
25. On the said limited ground the order is set aside and the matter is remitted to the Revisional Authority for appropriate reasoned and speaking order. The Revisional Authority shall endeavour to decide the case as expeditiously as possible.
26. With the aforesaid clarification, the petition is partly allowed and is remitted for fresh decision by Revisional Authority.
(K.M.THAKER, J.) jani Top