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TMI Blog2005 (11) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... plication dated 7th October, 2002. Factual position in a nutshell is as follows: Appellant No.1 applied for quarry lease to the Secretary, Government of Orissa Steel and Mines Department, in Form A of the Orissa Minor Mineral Concession Rules, 1990 (in short the Rules ) for decorative stone for a period of 10 years. On 25.10.2002, the Managing Director of the appellant No.1-Company entered into an agreement with one R. Narayan Swami for purchase of land measuring 1.134 acres in village Ambagan in the District of Ganjam to set up a cutting and polishing unit for decorative stones. On 26.10.2002 the Mining Officer, Baripada Circle, Baripada issued Form B to appellant No.1 and confirmed the receipt of its quarry lease application d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant, the view of the High Court is clearly erroneous. Undisputedly, the appellant No.1 had filed the application for the quarry lease earlier and his case was to have precedence over that of respondent NO.4. Merely because the respondent No.4 had purchased a sick unit which was not functional, priority under Rule 6 (6-a)(i) was not available to it. It was submitted that no reasons were indicated as to why and under what circumstances respondent No.4 could have priority visa- vis appellant No.1. In response, learned counsel for the State and respondent No.4 submitted that the crucial expression in sub-rule (6-a)(i) of Rule 6 is who has already set up an industry . Undisputedly, the unit which was taken over by respondent No.4 was en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le (5), if the State Government is of the opinion that in the interest of mineral development, it is necessary to do so, it may for the reasons to be recorded in writing grant quarry lease in preference to the applications made earlier. (6) Priority shall be given to the applicants in the following order, namely: (i) co-operatives of artisans using the minor mineral as raw material; (ii) a person who has been operating an industry based on the minor mineral applied for or, having completed all other formalities, would be able to operate it if the lease is granted; (iii)a person who is the raiyat of the land; (iv) any other category. (6-a) Notwithstanding anything contained in sub-rule (6), in respect of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which a lease has been granted for quarrying rocks used for decorative, industrial and export purposes including dimension stones. On a reading of the language of Rule 6 it is clear that three types of precedence/priority are embodied in the provision. First is a normal case where the application which has been received earlier is given precedence over the latter application. An exception is carved out in sub-rule (5-a) to the effect that if the State Government is of the opinion that in the interest of mineral department it is necessary to do so it may for reasons to be recorded in writing grant quarry lease in preference to the applications made earlier. Sub-rule (6) deals with another category of priority. In the present case Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had merely entered into an agreement for purchasing the land and placed orders for the machineries. The expression set up has a definite connotation of its own. The expression setting up means, as is defined in the Oxford English Dictionary, to place on foot or to establish , and is contradistinction to commence . The distinction is this that when a business is established and is ready to commence business, and then it can be said of that business that it is set up. But before it is ready to commence business it is not set up. (See Commissioner of Wealth Tax, Madras v. Ramaraju Surgical Cotton Mills Ltd. (1967 (1) SCR 761). In the said case, it was further held that the word set up is equivalent to the word established but o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o record reasons. So far as Sub-rule (6-a) is concerned, there is no requirement indicated to record reasons. The fact that priority is given to a person who has already set up an industry is itself the reason for giving priority. Therefore, the enumeration of the order of priority is itself the reason inbuilt in the process of consideration of the applications. That itself is the foundation and forms the rational for the priority given. It is not the case of the appellant that the order of priority is irrational. That being so, stand of learned counsel for the appellants that reasons were not recorded and, therefore, the action is vitiated is really of no consequence. Looked at from any angle, the appellants have not made out any case f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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