Snndur Manganese
& Iron Ores Ltd. Vs. State of Karnataka & Ors. [2010] INSC 737 (13
September 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7944 OF 2010 (Arising
out of S.L.P. (C) No. 22077 of 2009) Sandur Manganese & Iron Ores Ltd. ....
Appellant(s) Versus State of Karnataka & Ors. .... Respondent(s) WITH
CIVIL APPEAL NOS. 7945-54 OF 2010 (Arising out of S.L.P.(C) Nos. 22943-22952 of
2009) AND CIVIL APPEAL NOS. 7955-61 OF 2010 (Arising out of S.L.P.(C) Nos.
24124-24130 of 2009)
P. Sathasivam, J.
1) Leave granted in
all the special leave petitions.
2) These appeals seek
to challenge the common judgment and order of the Division Bench of the High
Court of Karnataka dated 05.06.2009 arising out of Writ Appeal No. 5084 of 2008
and allied matters and the decision of the State Government dated 26/27.02.2002
as well as the Central Government dated 29.07.2003.
3) The appellants in
these appeals are Sandur Manganese & Iron Ores Ltd. (in short
"Sandur") and M/s MSPL Ltd. The principal respondents are M/s Kalyani
Steels Ltd. (in short "Kalyani") and M/s Jindal Vijayanagar Steels
Ltd. (in short "Jindal"). Apart from these, the State of Karnataka
and the Union of India are also arrayed as respondents.
4) Factual matrix:
a) The case of Sandur
(Petitioner in SLP (C) No. 22077 of 2009) is as follows:
(i) Shri Y.R.
Ghorpade, ex-Ruler of Sandur State, was granted lease for mining of Iron &
Manganese Ores under Order No. GEO.Ms.068 dated 26.02.1953, for a period of 20
years commencing from 01.01.1954 to the extent of 29 sq. miles, falling within
the boundaries of the Sandur State. On 18.01.1954, the appellant-Company was
incorporated as a Private Limited Company under the provisions of the Companies
Act, 1956. On 21/23.06.1956, a lease was transferred in favour of the Company
as per Government Order No. I.1432-38 GE43.55-22. On 28.11.1964, the Company
was converted into a Public Limited Company. In 1965, the Company, with the aim
of value addition to Ores mined by the Company and also to industrial area, set
up a 15 MVA Metal and Ferro Alloys Plant at Vyasankere near Hospet at a
substantial capital cost. In 1980, Sandur also set up two more 20 MVA Furnaces
in the Plant for manufacture of Ferro-Silicon by entering into an agreement
with the State Government and the Karnataka Electricity Board to receive power
at a viable tariff. On 19.09.1973, upon applying for renewal of the abovesaid
lease, the Company was allotted an area of 20 sq. miles only instead of 29 sq.
miles which was
leased earlier. However, the Company was further granted renewal of lease for
another 1.46 sq. miles out of the area held earlier. On the very same date, the
State Government deleted an area of 9 sq. miles from the appellant-Company's
lease agreement on the ground that the said area is reserved for exploitation
by the National Mineral Development Corporation (in short "NMDC") - a
Government of India Undertaking. When the company noticed that the NMDC did not
initiate any Mining Lease Application on the said area, then on 29.09.1987, it
applied for mining lease over an area of 2 sq. miles within the said deleted
area. On 25.01.1989, the State Government rejected the application on the
ground that the area applied for was already reserved by NMDC.
However, NMDC was not
granted lease and in 1992, one Sri H.G. Rangangoud was granted 60 Hectares out
of the same applied area.
(ii) Again, on
24.06.1993, again the Company applied for grant of lease over an area of 513.16
Hectares within the area deleted from its original lease but it was rejected by
the State Government on the ground that the area applied by them has overlapped
with the area granted to one Sri Rangangoud and nine others. On 11.12.1993, the
Company challenged the above decision of the State Government by filing a
Revision Petition before the Government of India, Ministry of Coal and Mines,
New Delhi. On 09.04.1999, the Government of India by holding that the order
passed by the State Government was in violation of Rule 26 (1) of the Mineral
Concession Rules, 1960 (hereinafter referred to as "MC Rules") and
opposed to the principles of natural justice remanded the matter to the State
Government for early disposal as per the provisions of Mines & Minerals
(Development and Regulation) Act, 1957 (hereinafter referred to as the
"MMDR Act") and the Rules framed there under. On 26/27.02.2002, the
Company got a letter from the State Government that out of the area of 513.16
Hectares applied for by it, only an extent of 256 Hectares (640 acres) was
available and it could choose either Block A (168 Acres or 67 Hectares) or
Block B (472 Acres or 189 Hectares).
(iii) On 13.05.2002,
the Company filed a revision petition before the Government of India against
the said decision of the State Government. On 15.03.2003, the State Government
issued a Notification in exercise of its power under Rule 59 of the MC Rules
reserving the entire area calling for applications from the general public for
grant of mining leases and by notifying large extent of previously held areas
as available for grant of mines including the area applied by the
appellant-Company. On 16.04.2003, the appellant-Company, by way of abundant
caution, applied afresh for grant of mining lease over an area of 200 Hectares
in the notified area without prejudice to its rights for consideration of its
earlier application dated 24.06.1993. On 29.07.2003, the Government of India
allowed the revision petition filed by the appellant- Company and directed the
State Government to consider the application dated 24.06.1993 filed by the
appellant- Company on merits, in terms of order dated 09.04.1999 of the
Revisional Authority and pass a final order in the case.
In spite of this
order, the State Government has not passed any order. On 06.12.2004, a letter
was issued by the State Government seeking approval of the Central Government
for grant of lease to other applicants i.e. Jindal & Kalyani. Being
aggrieved by the said recommendation, on 11.06.2007, the appellant-Company
filed Writ Petition No. 8971 of 2007 before the High Court.
The learned single
Judge clubbed this writ petition along with W.P. No. 21608 of 2005 filed by
another applicant - MSPL Ltd. On 07.08.2008, the learned single Judge quashed
the Notification dated 15.03.2003 and the Mining Licences granted in favour of
Jindal and Kalyani with certain observations.
(iv) On 22.08.2008,
Jindal-Respondent No.5 herein filed W.A. No. 5026 of 2008 in the High Court.
Being aggrieved by the order passed by the learned single Judge, Sandur
preferred Writ Appeal No. 5084 of 2008 before the High Court. By the impugned
common order dated 05.06.2009, the Division Bench of the High Court set aside
the order of the learned single Judge dated 07.08.2008 and upheld the validity
of Notification of the State Government dated 15.03.2003 and the proceedings
dated 06.12.2004 and the consequential approval of the Central Government were
held valid. Aggrieved by the said order, the appellant-Company has filed
S.L.P.(C) No. 22077 of 2009 before this Court.
b) The case of MSPL
(Petitioner in SLP (C) Nos. 22943- 22952 of 2009) is as follows:
(i) MSPL Limited
filed above SLPs against the common judgment and order dated 05.06.2009 passed
by the High Court of Karnataka in W.A. Nos. 5024, 5026, 5032, 5052, 5053,
5064-5066, 5077 and 5145/2008 setting aside the judgment of the learned single
Judge dated 07.08.2008 in the writ petitions.
(ii) On 24.05.2001,
MSPL Ltd. made an application to the Director of Mines & Geology
(hereinafter referred to as "the Mines Director") for grant of a
mining lease over an extent of 298.5 Hectares in the area known as Eddinpada in
Kumaraswamy Range of the State of Karnataka which was part of a mining lease
previously held by the appellant-Company in S.L.P. (C) No. 22077 of 2009. On
30.08.2001, the State of Karnataka requested the Central Government to relax
the conditions set out in Rule 59(1) in favour of MSPL Ltd. under Rule 59(2).
While the matter was under consideration of the Central Government, one
Ziaullah Sharieff (another applicant for a mining lease) filed Writ Petition No.
35915 of 2001 (GM-MMS) before the High Court seeking declaration that he is
entitled for grant of a mining lease in his favour. On 21.12.2001, the Central
Government returned all proposals for grant of mining lease pending before it
to the State Government to await the report of the Regional Environmental
Impact Assessment of the Bellary-Hospet Region by National Environmental
Engineering Research Institute (NEERI).
(iii) On 13.05.2002,
Sandur filed a revision before the Central Government under Rule 54 of the MC
Rules challenging the proposal of the State Government dated 30.08.2001, in
favour of the MSPL. During pendency of the said revision, Sandur also filed
W.P. No. 22767 of 2002 seeking a mandamus to the Central Government to consider
its revision petition. On 24.10.2002, Jindal made an application for grant of
mining lease over a part of the same area previously held and surrendered by
Sandur. On 15.03.2003, the State Government issued Notification informing the
general public that the areas mentioned in the annexure thereof were available
for grant under Rule 59 of the Rules and interested persons were requested to
file applications for grant of mining leases.
On 16.04.2003,
pursuant to the said notification, MSPL made an application for the same area
previously held by Sandur. On 29.07.2003, the Central Government rejected the
revision petition of MSPL. On 20.12.2003, MSPL made further submissions before
the Mines Director. On 30.04.2004, the respondent-Mines Director sent a notice
to the MSPL for making submissions. Again on 06.10.2004, the Under Secretary to
the new State Government, Mines (C & I Department) issued another notice
under Rule 26(1) of the Rules requiring the MSPL to appear before the Hon'ble
Chief Minister of Karnataka to make a presentation for sanction of lease. MSPL
put-forth its claim and submitted a detailed presentation to the Principal
Secretary to the Chief Minister. Vide letter dated 06.12.2004, the State
Government sought the approval of the Central Government under Section 5(1) of
the MMDR Act to grant lease to Jindal over an area of 200.73 Hectares and
Kalyani over an area of 179.70 Hectares in respect of a part of the land
mentioned in S.No.1 to the Notification dated 15.3.2003. On 15.12.2004, MSPL
made representations both to the Minister for Mines and to the Secretary,
Department of Mines in the Central Government against the said proposal. On
21.12.2004, a further representation was made to the Secretary, Department of
Mines. Against the said approval, two others preferred writ petitions before
the High Court for quashing of the said proposal. MSPL filed application for
impleadment in the said writ petitions and the same was rejected by the learned
single Judge vide order dated 21.07.2005.
(iv) On 12.09.2005,
MSPL preferred writ petition being W.P. No. 21608 of 2005 before the High Court
challenging the recommendation in favour of Jindal and Kalyani. On
05.06.2006/27.06.2006, the Central Government granted approval to the
recommendation dated 06.12.2004 of the State Government for grant of mining
lease in favour of Jindal and Kalyani. Vide judgment dated 07.08.2008, learned
single Judge of the High Court allowed W.P. No.
21608 of 2005
quashing the recommendation. Against the judgment of the learned single Judge,
Jindal and Kalyani preferred W.A. Nos. 5026 & 5028 of 2008 respectively,
before a Division Bench of the High Court.
MSPL also filed W.A.
No. 5057 of 2008 challenging the same judgment of the learned single Judge save
and except to the extent that the recommendations of the State Government to
the Central Government insofar as it recommended the grant of mining to Jindal
and Kalyani was quashed. A large number of other writ appeals were also filed,
heard together and disposed of by a common judgment and order dated 05.06.2009.
5) Heard Mr. Nariman,
learned senior counsel for Sandur, Mr. K.K. Venugopal and Mr. Krishnan
Venugopal, learned senior advocates for MSPL, Mr. Harish N. Salve, learned
senior counsel for Jindal, Mr. Dushyant Dave, learned senior counsel for
Kalyani and Mr. Ashok Haranahalli, learned Advocate General for the State of
Karnataka.
6) Main issues:- a)
Whether the State Government's recommendation dated 06.12.2004 and the
proceedings of the Chief Minister are contrary to the provisions of Section 11
of the Act and Rules 59 and 60 of MC Rules and not valid in law.
b) Whether the
respondent-Jindal's application dated 24.10.2002 made prior to the Notification
dated 15.03.2003 is capable of being entertained along with the applications
made pursuant to the said notification.
c) Whether the order
of the High Court of Karnataka in Ziaulla Sharieff's case permit the
consideration of the respondent-Jindal's application dated 24.10.2002 made
prior to the notification dated 15.03.2003.
d) Whether Rule 35 of
the MC Rules justify the recommendation of the State Government in favour of
the Respondents-Jindal and Kalyani.
e) Whether the
criterion of "captive consumption"
referred to in Tata
Iron and Steel Co. Ltd. vs. Union of India, (1996) 9 SCC 709, have any
application in this case despite not being one of the factors referred to in
Section 11 (3) of the MMDR Act or Rule 35 of the MC Rules.
14 f) Whether
factors such as the past commitments by the State Government to applicants who
have already set up steel plants, matter for consideration for grant of lease
despite the MMDR Act and the MC Rules constituting a complete Code.
g) Whether the
recommendation in favour of respondents-Jindal and Kalyani saved by the operation
of the Law of Equity.
h) Whether the
learned single Judge as well as the Division Bench are justified in arriving at
such conclusion.
i) Whether it is
advisable to remit it to the Central Government.
7) Before considering
various issues as mentioned above, let us refer relevant provisions of the Act
and the Rules concerned to the issues in question. The Preamble of the MMDR
Act, as amended by Act 38 of 1999, makes it clear that it is intended for the
development and regulation of mines and minerals under the control of Union.
The relevant provisions from the Act are:
"2. Declaration
as to the expediency of Union control.--It is hereby declared that it is
expedient in the public interest that the Union should take under its control
the regulation of mines and the development of minerals to the extent herein
after provided.
3. Definitions:-In
this Act, unless the context otherwise requires:-- a. "minerals"
includes all minerals except mineral oils;
b. .......
c. "mining
lease" means a lease granted for the purpose of undertaking mining
operations, and includes a sub-lease granted for such purpose;
d. .......
e. .......
f. .......
g. "prospecting
licence" means a licence granted for the purpose of undertaking
prospecting operations;
h. "prospecting
operations" means any operations undertaken for the purpose of exploring,
locating or proving mineral deposits;
(ha)
"reconnaissance operations" means any operations undertaken for
preliminary prospecting of a mineral through regional, aerial, geophysical or
geochemical surveys and geological mapping, but does not include pitting,
trenching, drilling (except drilling of boreholes on a grid specified from time
to time by the Central Government) or sub-surface excavation;
(hb)
"reconnaissance permit" means a permit granted for the purpose of
undertaking reconnaissance operations; and.
11. Preferential
right of certain persons.--(1)Where a reconnaissance permit or prospecting
licence has been granted in respect of any land, the permit holder or the licencee
shall have a preferential right for obtaining a prospecting licence or mining
lease, as the case may be, in respect of that land over any other person:
Provided that the
State Government is satisfied that the permit holder or the licensee, as the
case may be,- (a) has undertaken reconnaissance operations or prospecting
operations, as the case may be, to establish mineral resources in such land;
(b) has not committed
any breach of the terms and conditions of the reconnaissance permit or the
prospecting licence;
(c) has not become
ineligible under the provisions of this Act; and (d) has not failed to apply
for grant of prospecting licence or mining lease, as the case may be, within
three months after the expiry of reconnaissance permit or prospecting licence,
as the case may be, or within such further period, as may be extended by the
said Government.
(2) Subject to the
provisions of sub-section (1), where the State Government has not notified in
the Official Gazette the area for grant of reconnaissance permit or prospecting
licence or mining lease, as the case may be, and two or more persons have
applied for a reconnaissance permit, prospecting licence or a mining lease in
respect of any land in such area, the applicant whose application was received
earlier, shall have the preferential right to be considered for grant of
reconnaissance permit, prospecting licence or mining lease, as the case may be,
over the applicant whose application was received later:
Provided that where
an area is available for grant of reconnaissance permit, prospecting licence or
mining lease, as the case may be, and the State Government has invited
applications by notification in the Official Gazette for grant of such permit,
licence or lease, all the applications received during the period sepcified in
such notification and the applications which had been received prior to the
publication of such notification in respect of the lands within such area and
had not been disposed of, shall be deemed to have been received on the same day
for the purposes of assigning priority under this sub-section:
Provided further that
where any such applications are received on the same day, the State Government,
after taking into consideration the matter specified in sub-section (3), may
grant the reconnaissance permit, prospecting licence or mining lease, 17 as
the case may be, to such one of the applications as it may deem fit.
(3) The matters referred
to in sub-section (2) are the following:- a. any special knowledge of, or
experience in, reconnaissance operations, prospecting operations or mining
operations, as the case may be, possessed by the applicant;
b. the financial
resources of the applicant;
c. the nature and
quality of the technical staff employed or to be employed by the applicant;
d. the investment
which the applicant proposes to make in the mines and in the industry based on
the minerals;
e. such other matters
as may be prescribed.
(4) Subject to the
provisions of sub-section (1), where the State Government notifies in the
Official Gazette an area for grant of reconnaissance permit, prospecting
licence or mining lease, as the case may be , all the applications received
during the period as specified in such notification, which shall not be less
than thirty days, shall be considered simultaneously as if all such
applications have been received on the same day and the State Government, after
taking into consideration the matters specified in sub-section (3), may grant
the reconnaissance permit, prospecting licence or mining lease, as the case may
be, to such one of the applicants as it may deem fit.
(5) Notwithstanding
anything contained in sub-section (2), but subject to the provisions of
sub-section (1), the State Government may, for any special reasons to be
recorded, grant a reconnaissance permit, prospecting licence or mining lease,
as the case may be, to an applicant whose application was received later in
preference to an application whose application was received earlier:
Provided that in
respect of minerals specified in the First Schedule, prior approval of the
Central Government shall be obtained before passing any order under this
sub-section."
8) In exercise of the
powers conferred by Section 13 of the Act, the Central Government framed rules
called the Minerals Concession Rules, 1960. We are concerned only with the
following Rules:- "35. Preferential rights of certain persons. - Where two
or more persons have applied for a reconnaissance permit or a prospecting
licence or a mining lease in respect of the same land, the State Government
shall, for the purpose of sub- section(2) of Section 11, consider, besides the
matters mentioned in clauses (a) to (d) of sub-section(3) of Section 11, the
end use of the mineral by the applicant.
59. Availability of
area for regrant to be notified. - (1) No area - a) which was previously held
or which is being held under a reconnaissance permit or a prospecting licence
or a mining lease; or b) which has been reserved by the Government or any local
authority for any purpose other than mining; or c) in respect of which the
order granting a permit or licence or lease has been revoked under sub-rule (1)
of rule 7A or sub-rule(1) of rule15 or sub-rule(1) of rule 31, as the case may
be; or d) in respect of which a notification has been issued under the
sub-section (2) or sub-section (4) of Section 17; or e) which has been reserved
by the State Government under Section 17A of the Act shall be available for
grant unless - (i) an entry to the effect that the area is available for grant
is made in the register referred to in sub-rule (2) of rule 7D or sub-rule (2)
of rule 21 or sub-rule (2) of rule 40 as the case may be; and (ii) the
availability of the area for grant is notified in the Official Gazette and
specifying a date (being a date not earlier than thirty days from the date of
the publication of such notification in the Official Gazette) from which such
area shall be available for grant:
19 Provided that
nothing in this rule shall apply to the renewal of a lease in favour of the
original lessee or his legal heirs notwithstanding the fact that the lease has
already expired:
Provided further that
where an area reserved under rule 58 or under section 17A of the Act is
proposed to be granted to a Government Company, no notification under clause
(ii) shall be required to be issued:
Provided also that
where an area held under a reconnaissance permit or a prospecting licence, as
the case may be, is granted in terms of sub-section(1) of section 11, no
notification under clause (ii) shall be required to be issued..
(2) The Central
Government may, for reasons to be recorded in writing, relax the provisions of
sub-rule (1) in any special case.
60. Premature
applications. - Application for the grant of a reconnaissance permit,
prospecting licence or mining lease in respect of areas whose availability for
grant is required to be notified under rule 59 shall, if - (a) no notification
has been issued, under that rule ; or (b) where any such notification has been
issued, the period specified in the notification has not expired, shall be
deemed to be premature and shall not be entertained.".
9) In the light of
the above statutory provisions, let us consider the issues framed, one by one,
and test the validity or otherwise of the decision of the State Government as
well as the order passed by the learned single Judge and the Division Bench of
the High Court.
10) As mentioned
earlier, by the impugned common judgment dated 05.06.2009, the Division Bench
reversed the judgment of the learned single Judge and held that the
applications for grant of mining lease made prior to notification under Rule 59
of the MC Rules could be considered for grant along with applications filed
pursuant to the notification. In the case on hand, the application was made by
Jindal prior to the notification. The Division Bench upheld the recommendations
dated 06.12.2004 of the State Government together with the proceedings of the
Chief Minister which were the basis for the recommendation under Section 5(1)
of the MMDR Act to the Central Government for approval of grant of mining lease
in favour of Jindal and Kalyani. It is seen from the records that on
24.05.2001, MSPL made an application to the State Government for grant of
mining lease over an area of 298.5 hectares in Eddinpada area in Kumaraswamy
range of the State of Karnataka and also sought relaxation of the conditions
specified in Rule 59(1) of the MC Rules. This area was previously held under a
mining lease by Sandur. Subsequently, on 24.10.2002, Jindal also made an
application for grant over the same area. The State Government made a
recommendation to the Central Government for grant of lease to the MSPL and
sought relaxation of the conditions set out in Rule 59(1).
However, it is not in
dispute that the Central Government returned the proposal of the State
Government directing it to await an environmental study being carried out by
the NEERI.
11) The materials
placed further show that on 15.03.2003, the State Government issued a
Notification under Rule 59(1) of the MC Rules notifying the availability of a
large area for re-grant of mining lease which was referred to as the "Held
Area Notification". Pursuant to the same, MSPL made a fresh application on
16.04.2003 for grant of mining lease over the notified area. Kalyani and 88
other applicants also applied pursuant to the said Notification. Admittedly,
Jindal did not apply pursuant to the "Held Area Notification", even though
some of its sister concerns applied for the grant. On 06.12.2004, the State
Government made a recommendation to the Central Government under Section 5 of
the MMDR Act for approval of the proposed grant of mining lease to Jindal and
Kalyani. MSPL and some of the applicants made representations to the Central
Government against the said recommendation made by the State Government.
Challenging the
recommendation dated 06.12.2004 of the State Government, writ petitions were
filed by the aggrieved companies before the High Court. During the pendency of
the writ petitions, the Central Government gave its approval for grant of
mining lease in favour of Jindal and Kalyani on 05.06.2006 and 27.06.2006
respectively. By judgment dated 07.08.2008, the learned single Judge allowed
the writ petitions filed by MSPL and Sandur as well as others and quashed the
grant on the ground among others, that Jindal's application prior to the
"Held Area Notification" could not have been entertained in view of
Section 11(4) of the MMDR Act and Rules 59 and 60 of the MC Rules. The Division
Bench, by judgment and order dated 05.06.2009, reversed the judgment passed by
the learned single Judge. With this background, let us discuss the issues
formulated above.
Issue (a)
"Whether the State Government's recommendation dated 06.12.2004 and the
proceedings of the Chief Minister are contrary to the provisions of Section 11
of the Act and Rules 59 and 60 of MC Rules and not valid in law."
12) Mr. Nariman and
Mr. K.K. Venugopal, learned senior counsel appearing for the Sandur and MSPL
respectively, by taking us through the entire proceedings of the Chief
Minister, vehemently contended that the State Government was pre-determined to
grant the lease in favour of Jindal and Kalyani. They also contended that there
is no clear reason as to why Jindal and Kalyani alone were given preference and
the applications of MSPL, Sandur and others were not considered favourably.
They also highlighted that all that is done is the reproduction of the details
mentioned in their applications and at the end, certain columns were left blank
in which the Chief Minister has filled in by hand, after which he has signed
the proceedings. They also pointed out that though relevant criteria is
provided under Section 11(3) of the Act, only one criteria, namely, the
proposed investment, is taken into account while evaluating the applicants. It
is their grievance that the special reason mentioned in the recommendation is
only to favour Jindal and Kalyani.
Even if it is so,
according to them, the decision of the State Government is violative of Section
11(4) of the Act which permits only applications made pursuant to the
Notification to be taken into account and not applications made prior to the
Notification. Both the learned senior counsel, relying on Rule 35, pointed out
that the recommendations made to justify preference taking into account past
investments by steel companies cannot be sustained. In any event, according to
them, in view of Section 2 of the Act, State Legislature is denuded of its legislative
power to make any law with respect to the regulation of mines and mineral
development. Finally, it was pointed out that there is no question of framing
policy such as the Karnataka Mineral Policy to give out mining leases
independently of the MMDR Act and the Rules. On the other hand, Mr. Harish N.
Salve and Mr. Dushyant Dave, learned senior counsel appearing for Jindal and
Kalyani, by drawing our attention to the very same provisions and the orders of
the courts, submitted that the recommendations made by the State Government is
in terms of the provisions of the Act and Rules and the Division Bench was
right in affirming the same.
13) It is useful to
refer notification dated 15.03.2003 issued by the Government of Karnataka which
reads thus:
"GOVERNMENT OF
KARNATAKA NO. CI/16/MMM/2003 Government of Karnataka Secretariat Ms. Building
Bangalore, Dated 15.03.2003 26 NOTIFICATION It is hereby informed for the
mining public that the area noted in the annexure is available for regrant
under rule 59 of Mineral Concession Rules, 1960.
The application for
grant of mining lease shall be received by the Director of Mines and Geology,
No.49, "Khanij Bhavan", D.Devaraj Urs Road, Bangalore-01, after 30
days from the date of publication of the notification in the Official Gazette.
If the day notified for receiving the application happens to be a Public
Holiday or General Holiday, applications will be received on the next working
day under amended Rules. The sketch of the area is available for inspection at
the office of the Director, Department of Mines and Geology, Khanija Bhavan,
D.Devaraj Urs Road, Bangalore-01 during working hours on all working days.
The mining public
should note that the availability of the area published here in is subject to
the clearance from the Revenue Department for mining activities and compliance
of the MM (D&R) Act, 1957 and the M.C.Rules and all other relevant Acts and
Rules by the applicants. In case the area is found to consist of Forest Lands,
the clearance from the Forest Department under Section (2) of the Forest
(Conservation) Act, 1980 for utilizing the area for non-forest activities
should be obtained by the applicants.
Interested persons
are advised to inspect the area and satisfy themselves about the availability
of mineral deposits (as the area is previously under held. ML/PL block) and the
present status of the land there is before making application for mining lease.
BY ORDER AND IN THE
NAME OF THE GOVERNOR OF KARNATAKA (A.B. SIDDHANTI) Under Secretary to Govt.
(Mines), Commerce and Industries Department."
14) After expiry of
the cut-off date, as mentioned in the said notification, hearing was conducted
by the Chief Minister under Rule 26A of the Rules. The order of the Chief
Minister shows that as per the direction of the High Court in a writ petition
filed by Ziaulla Sharieff, the State has to consider their applications in
accordance with law along with other applications. It is the claim of the State
that as per the said decision, it was necessary to consider the applications
filed for grant of mining lease over the area in question before the issue of
Notification on 15.03.2003 along with applications received in response to the
said Notification. Para 3 of the order of the Chief Minister shows that 21
applications were filed for grant of mining lease over the area in question
before the notification was issued and 90 applications were received in response
to the notification. In all, the Chief Minister has considered 111 applications
for grant of mining lease.
The order further
shows that notice under Rule 26(1) of the Rules was issued to all the
applicants to appear for hearing on 12.10.2004 at 4.00 PM to make presentation
for sanction of mining lease in their favour. On 12.10.2004, the hearing was
adjourned. According to the State, applicants were heard on different dates.
Out of 111 applicants, 85 applicants attended the hearing and 75 applicants
gave their written representations. On 16.10.2004, the hearing was again
adjourned, 72 applicants attended and 9 applicants submitted their written
representations. Again, the hearing was held on 25.10.2004, 76 applicants
attended and 27 applicants submitted their written submissions. On 04.11.2004,
16 applicants attended the hearing and 7 applicants submitted their written
submissions.
15) The order of the
Chief Minister further shows that out of 111 applications, 55 are
companies/firms and 30 are individuals. Out of 111 applicants, 11 have given
more than one application in the name of their sister companies/partnership
firms etc. The proceeding further shows that all applications were examined
under Section 11(5) of the Act with a view to provide an opportunity to all the
applicants who have filed their applications on subsequent days i.e. after
16.04.2003. The order further shows that out of 30 individuals who have applied
for mining lease, only 3 applicants hold mining lease in the State and the
remaining 27 applicants do not hold any mining lease. Some of the individuals
are local people and have some past experience in mining. Some of them are
qualified engineers. Most of the applicants have indicated that they would be
exporting ore or would be supplying it to the local market. The order proceeds
that none of them have indicated any proposal for the value addition to the
ore. The Chief Minister, after considering them, do not merit any consideration
for grant of mining lease, rejected all those applications. It is brought to
our notice that no one from that category challenged the same in the court of
law.
16) After rejecting
those applications, the impugned proceeding shows that a total number of 55 companies/firms
have applied for mining lease and the details furnished by them have been
incorporated in a tabular form in para 9. In para 10 of the order, it was
stated that out of 55 companies/firms who have applied for mining lease, only
12 companies/firms were having mining lease in the State. Some of the companies
have already established their units in the State and they have requested the
sanction of mining lease for using the ore for captive consumption and for
value addition to the ore.
Some of the firms who
are willing to invest huge amounts in mining industry have indicated that they
require the mines for exporting ore and for supplying it to the local market.
Some of the companies have already established their units in Karnataka by
investing huge amounts and they are depending upon local market for their raw
material, that is, iron ore. In para 11 of the order, it is stated that since
the request of such of the companies is for `captive consumption' and for
`value addition', they deserve consideration over others. In para 12, the order
refers those who established steel plants in Karnataka.
Finally, after
quoting Rule 35 which provides for preferential rights for certain persons and
by arriving at a conclusion that "it is desirable to allot the mining
areas to applicants who have already established their plants in the State by
investing huge amounts", and by invoking Rule 35 of the MC Rules, the
Chief Minister recommended or in other words filled up dotted lines by
mentioning Jindal and Kalyani.
17) It is the
grievance of the appellants, namely, Sandur and MSPL that the proceedings of
the Chief Minister shows that the State Government was pre-determined to grant
the lease in favour of Jindal and Kalyani.
18) A perusal of the
proceedings of the Chief Minister shows that no clear reasons were given to
show as to why Jindal and Kalyani were preferred over other applicants.
There is also no
plausible reason why the applications of the appellants herein were not
considered favourably. A summary of the applications was prepared and at the
end certain columns were left blank which the Chief Minister filled by hand and
then signed the proceedings.
19) The evaluation of
all 111 applications has been done in three successive stages in a manner not
envisaged by Section 11. In the first stage of the process, the applications by
individuals were discarded. In the second stage, those by companies as a whole
and in the third stage, only companies with existing investment in steel plants
out of which Jindal and Kalyani were chosen without any special or adequate
reason. In fact, no such procedure of three stage consideration or
differentiation between individuals and companies and those companies with
existing investments and those without existing investment is envisaged in
Section 11. As rightly pointed out by learned senior counsel for the
appellants, the proceedings of the Chief Minister, at no level, consider the
various guiding criteria mentioned in Section 11(3) as mentioned below:
33 a. "any
special knowledge of, or experience in, reconnaissance operations, prospecting
operations or mining operations, as the case may be, possessed by the
applicant;
b. the financial
resources of the applicant;
c. the nature and
quality of the technical staff employed or to be employed by the applicant;
d. the investment
which the applicant proposes to make in the mines and in the industry based on
the minerals;
e. such other matters
as may be prescribed."
20) It is true that
among the criteria mentioned, only one criteria, namely, "proposed investment"
is taken into account in evaluating some applications. However, as mentioned
above, in the said proceedings, two irrelevant points were taken into account,
namely, (i) whether or not the applicant holds a mining lease in the State and
(ii) the amount of their past investment in steel plant. It is equally true
that the proceedings recommended in favour of Jindal and Kalyani was justified
by the special reasons specifically stated at the very end in terms of Section
11(5) which is reproduced below:- "(5) Notwithstanding anything contained
in sub-section (2), but subject to the provisions of sub-section (1), the State
Government may, for any special reasons to be recorded, grant a reconnaissance
permit, prospecting licence or mining lease, as the case may be, to an
applicant whose application was received later in preference to an application
whose application was received earlier:
34 Provided that in
respect of minerals specified in the First Schedule, prior approval of the
Central Government shall be obtained before passing any order under this
sub-section."
A plain reading of
the above provision makes it amply clear that it would apply to favour a later
applicant over an earlier applicant which is relevant only in the event that
the main provision of Section 11(2) relating to preference of prior applicants
applies and not in the case of notification inviting applications, whether it
is under the first proviso to Section 11(2) or 11(4) under the later proviso,
upon notification, by deeming fiction all applications are treated as having
been received on the same date.
21) Apart from the
above infirmity, the proceedings of the Chief Minister also violate Section
11(4) of the Act which reads thus:
"(4) Subject to
the provisions of sub-section (1), where the State Government notifies in the
Official Gazette an area for grant of reconnaissance permit, prospecting
licence or mining lease, as the case may be, all the applications received
during the period as specified in such notification, which shall not be less
than thirty days, shall be considered simultaneously as if all such
applications have been received on the same day and the State Government, after
taking into consideration the matters specified in sub-section (3), may grant
the reconnaissance permit, prospecting licence or 35 mining lease, as the case
may be, to such one of the applicants as it may deem fit."
The above sub-section
permits only the applications made pursuant to the notification to be taken
into account and not applications made prior to the notification. The
notification referred to in the first proviso to Section 11(2) is intended only
to invite applications in respect of "virgin areas". In the case of
previously held areas covered by present notification dated 15.03.2003,
applications made prior to the notification cannot be entertained because they
are premature.
22) We have already
adverted to Section 2 of the MMDR Act, which is a parliamentary declaration,
makes it clear that the State Legislature is denuded of its legislative power
to make any law with respect to the regulation of mines and mineral development
to the extent provided in the MMDR Act. (Vide State of Orissa vs. M.A. Tulloch
& Co. (1964) 4 SCR 461). In Baijnath Kedio vs. State of Bihar and Others,
(1969) 3 SCC 838, a Constitution Bench of this Court reiterated the above view.
Argument of the appellant in that case was that, apart from the provisions of
the 2nd proviso to Section 10 added to the Land Reforms Act, 1950 in 1964, by
Act IV of 1965 and second sub-rule added to Rule 20 of the Bihar Minor Mineral
Concession Rules, 1964, there is no power to modify the terms. It was further
contended that these provisions of law are said to be outside the competence of
the State Legislature and the Bihar Government. With regard to the State
Legislature, it was contended that the scheme of the relevant entries in the
Union and the State List is that to the extent to which regulation of mines and
mineral development is declared by Parliament by law to be expedient in the
public interest, the subject of legislation is withdrawn from the jurisdiction
of the State Legislature and, therefore, Act 67 of 1957 (MMDR Act) leaves no
legislative field to the Bihar Legislature to enact Act 4 of 1955 amending the
Land Reforms Act. Answering those questions, the Constitution bench has held
thus:
"13. .... .....
Entry 54 of the Union List speaks both of Regulation of mines and minerals
development and Entry 23 is subject to Entry 54. It is open to Parliament to
declare that it is expedient in the public interest that the control should
rest in Central Government. To what extent such a declaration can go is for
Parliament to determine and this must be commensurate with public interest.
Once this declaration is made and the extent laid down, the subject of
legislation to the extent laid down becomes an exclusive subject for
legislation by Parliament. Any legislation by the State after such declaration
and trenching upon the field disclosed in the declaration must necessarily be
unconstitutional because that field is abstracted from the legislative
competence of the State Legislature. This proposition is also self-evident that
no attempt was rightly made to contradict it. There are also two decisions of
this Court reported in the Hingir Rampur Coal Co. Ltd. v. State of Orissa, and
State of Orissa v. M.A. Tulloch and Co. in which the matter is discussed. The
only dispute, therefore, can be to what extent the declaration by Parliament
leaves any scope for legislation by the State Legislature. If the impugned
legislation falls within the ambit of such scope it will be valid; if outside
it, then it must be declared invalid.
14. The declaration
is contained in Section 2 of Act 67 of 1957 and speaks of the taking under the
control of the Central Government the regulation of mines and development of
minerals to the extent provided in the Act itself. We have thus not to look
outside Act 67 of 1957 to determine what is left within the competence of the
State Legislature but have to work it out from the terms of that Act. In this
connection we may notice what was decided in the two cases of this Court. In
the Hingir Rampur case a question had arisen whether the Act of 1948 so
completely covered the field of conservation and development of minerals as to
leave no room for State legislation. It was held that the declaration was
effective even if the rules contemplated under the Act of 1948 had not been
made.
However, considering
further whether a declaration made by a Dominion Law could be regarded as a
declaration made by Parliament for the purpose of Entry 54, it was held that it
could not and there was thus a lacuna which the Adaptation of Laws Order, 1950
could not remove. Therefore, it was held that there was room for legislation by
the State Legislature.
15. In the M.A.
Tulloch case the firm was working a mining lease granted under the Act of 1948.
The State Legislature of Orissa then passed the Orissa Mining Areas Development
Fund Act, 1952 and levied a fee for the development of mining areas within the
State. After the provisions came into force a demand was made for payment of fees
due from July 1957 to March 1958 and the demand was challenged. The High Court
held that after the coming into force of Act 67 of 1957 the Orissa Act must be
held to be non existent. It was held on appeal that since Act 67 of 1957
contained the requisite declaration by Parliament under Entry 54 and that Act
covered the same field as the Act of 1948 in regard to mines and mineral
development, the ruling in Hingir Rampur's case applied and as Sections 18(1)
and (2) of the Act 67 of 1957 were very wide they ruled out legislation by the
State Legislature. Where a superior legislature evinced an intention to cover
the whole field, the enactments of the other legislature whether passed before
or after must be held to be overborne. It was laid down that inconsistency
could be proved not by a detailed comparison of the provisions of the
conflicting Acts but by the mere existence of two pieces of legislation. As
Section 18(1) covered the entire field, there was no scope for the argument
that till rules were framed under that Section, room was available."
The Constitution
Bench after considering Hingir Rampur Coal Co. Ltd. vs. State of Orissa, 1961
(2) SCR 537 and M.A. Tulloch (supra) held that in view of the two
undermentioned rulings of this Court and by enacting Section 15 of Act 67 of
1957, the Union of India has taken all the power to itself and authorized the
State Government to make rules for the regulation of leases. By the declaration
and the enactment of Section 15, the whole of the field relating to minor
minerals came within 39
the jurisdiction of Parliament and no scope was left for the enactment of the
second proviso to Section 10 in the Land Reforms Act. The enactment of the
proviso was, therefore, without jurisdiction.
23) In State of West
Bengal vs. Kesoram Industries Ltd. and Others, (2004) 10 SCC 201, after
referring to earlier judgments including M.A. Tulloch (supra) and Baijnath
Kedio (supra), the Constitution Bench held as under:
"95. .... ....
All that the Court has said is that the 1957 enactment covers the field of
legislation as to the regulation of mines and the development of minerals. As
Section 2 itself provides and indicates, the assumption of control in public
interest by the Central Government is on: (i) the regulation of mines, (ii) the
development of minerals, and (iii) to the extent hereinafter provided. The
scope and extent of declaration cannot and could not have been enlarged by the
Court nor has it been done. The effect is that no State Legislature shall have
power to enact any legislation touching: (i) the regulation of mines, (ii) the
development of minerals, and (iii) to the extent provided by Act 67 of 1957....
.... "
24) In the same way,
the State is also denuded of its executive power in regard to matters covered
by the MMDR Act and the Rules. [vide Bharat Coking Coal Ltd. vs. State of Bihar
& Ors., (1990) 4 SCC 557].
25) In view of the
specific parliamentary declaration as discussed and explained by this Court in
various decisions, there is no question of the State having any power to frame
a policy de hors the MMDR Act and the Rules.
26) In State of Assam
& Ors. vs. Om Prakash Mehta & Ors., (1973) 1 SCC 584, this Court in
paragraph 12 held that the MMDR Act, 1957 and the MC Rules, 1960 contain
complete code in respect of the grant and renewal of prospecting licences as
well as mining leases in lands belonging to Government as well as lands
belonging to private persons.
27) Again this Court
in Quarry Owners' Association vs. State of Bihar & Ors., (2000) 8 SCC 655, held
that both the Central and the State Government act as mere delegates of
Parliament while exercising powers under the MMDR Act and the MC Rules.
28) It is not open to
the State Government to justify grant based on criteria that are de hors to the
MMDR Act and the MC Rules. The exercise has to be done strictly in accordance
with the statutory provisions and if there is any deviation, the same cannot be
sustained. It is the normal rule of construction that when a statute vests
certain power in an authority to be exercised in a particular manner then the
said authority has to exercise it only in the manner provided in the statute
itself. This principle has been reiterated in C.I.T. Mumbai vs. Anjum M.H.
Ghaswala & Ors., (2002) 1 SCC 633 at 644, Captain Sube Singh & Ors. vs.
Lt. Governor of Delhi &
Ors., (2004) 6 SCC
440 and State of U.P. vs. Singhara Singh & Ors., (1964) 4 SCR 485.
29) Mr. Harish N.
Salve and Mr. Dushyant Dave, by drawing our attention to the decision of this
Court in TISCO vs. U.O.I. & Anr., (1996) 9 SCC 709, submitted that inasmuch
as this Court had upheld the grants based on "captive consumption",
there is no flaw or error in the recommendation of the State Government dated
06.12.2004. A perusal of the above decision clearly shows that it concerned
with Section 8(3) of the MMDR Act which requires consideration of the extremely
general criterion of the interests of mineral development before granting
second renewal of a mining lease. Unlike in Section 11(3), no further criteria
was specified and it was in this background, this Court upheld on the facts of
that case that relevant material taken into account by the Committee set up by
the Central Government rightly included "captive consumption". In
view of the factual situation, the said decision can have no bearing on initial
grants of mining lease where the only permissible criteria are the matters set
out in Section 11(3) of the MMDR Act.
Issue (b)
"Whether the respondent-Jindal's application dated 24.10.2002 made prior
to the Notification dated 15.03.2003 is capable of being entertained along with
the applications made pursuant to the said notification."
30) The next vital
issue that arises in this case is whether Jindal's application dated 24.10.2002
made prior to the Notification dated 15.03.2003 inviting applications for
previously held area could be considered in view of Section 11(4) of the MMDR
Act read with Rules 59 and 60 of the MC Rules. Before considering the above
aspect, it is relevant to note the stand taken by Jindal that in 2001, one
Ziaulla Sharieff filed a writ petition being Writ Petition No 35915 of 2001
seeking a declaration that he was entitled to a mining lease in respect of 388
acres of land in Sandur Taluk, Bellary District. It was pointed out that in the
said writ petition, MSPL was arrayed as respondent No.3 and Sandur was arrayed
as Respondent No.7. Three sister concerns of Jindal were also arrayed as
respondents. During the pendency of the said writ petition, the State
Government issued a notification dated 15.03.2003 inviting applications from
the general public for mineral concessions over large areas of the State of
Karnataka. It was further pointed out that the area concerned in the said writ
petition as also the area concerned in the present appeals were included in the
said notification. By judgment and order dated 29.03.2004, the High Court
disposed of Writ Petition No. 35915 of 2001 with the following direction
"in view of the subsequent notification issued by the State Government
dated 15.03.2003, inviting that the area is available for grant, the State
Government is now expected not only to consider the applications pending before
it but also the applications that may be filed pursuant to the above said
notification notwithstanding the earlier recommendation made by the second
respondent." Learned senior counsel appearing for Jindal submitted that
the State Government had acted on the basis of the Ziaulla Sharieff's case and
empowered the Director of Mines and Geology to hear applications that were
filed prior to the issuance of the notification dated 15.03.2003 and were
pending on the date of the said notification.
Whether such
direction saves the State Government's decision in considering the Jindal's
application which was made well prior to the notification dated 15.03.2003.
31) In order to
determine whether it is Section 11(4) or the first proviso to Section 11(2), it
is relevant to understand the intention of the legislature in enacting Section
11 of the MMDR Act and Rules 59 and 60 of MC Rules as being part of single
statutory scheme governing the grant of reconnaissance permits, prospecting
licences and mining leases. The amendments to MMDR Act in 1999 which inserted
and re- 45 drafted Section 11 had their origin in the Report of the Committee
to Review the Existing Laws and Procedure for Regulation and Development of
Minerals set up by the Ministry of Mines, Government of India, submitted in
January, 1998. We are concerned about para 2.1.21 of the Report which reads as
under:
"... The concept
of first-come, first-serve has become necessary in view of the fact that the
Act does not provide for inviting applications through advertisement for grant
of PL/ML in respect of virgin areas. No doubt, there is provision in Rule 59 of
MCR for advertisement of an area earlier held under PL/ML with provision for
relaxation." In this background, the Committee recommended the
introduction of the proviso to Section 11(2) permitting calling for
applications by way of a notification. There is a distinction between virgin
areas and areas covered under Rule 59 and Section 11(2) ought to be interpreted
to cover virgin areas alone."
If we consider
Section 11 with the aid of the said Report, it makes it clear that Section
11(1) provides preferential right to the holder of reconnaissance permits or a
prospecting licencee who has identified mineral resources in the area allotted
to him for grant of a mining lease, subject to certain conditions specified in
the proviso appended thereto. The over-riding character of the priority given
to the successful prospecting licencee or reconnaissance permit-holder is clear
from the fact that each of the subsequent sub-sections in Section 11 is made
subject to Section 11(1).
32) It is also clear
that the main provision in Section 11(2) gives preference to a prior applicant
for grant of reconnaissance permit, prospecting licence or mining lease over
later applicants where the State Government has not issued any notification.
The analysis of the Report makes it clear that the main provision in Section
11(2) applies to "virgin areas". It further makes it clear that to
the extent that an area that is previously held or reserved would require a
notification for it to become available. The first proviso to Section 11(2)
carves out an exception to the preferential right based on priority of
applications in point of time referred to in the main provision. It makes it
clear that where the State Government subsequently issues a notification
inviting applications for grant, the prior and subsequent applications to the
notification would be considered as if they were filed on the same day and no
priority in order of time would be given. The second proviso requires the State
Government to examine the matters set out in Section 11(3) while considering
the applications for grant.
33) The Committee's
Report, particularly, para 2.1.21 which we extracted in the earlier paras,
makes it clear that this provision was inserted because the Act does not
provide for advertisement of virgin areas and the State Government was
perfectly within the rights to issue an advertisement inviting applications
even for virgin areas. In this regard, it is useful to mention that this Court
had suggested an almost identical change in the un-amended Section 11 in Indian
Metals and Ferro Alloys Ltd. vs. Union of India & Ors., 1992 Supp. 1 SCC 91
at page 127 para 35.
"35. Now, to
turn to the contentions urged before us: Dr Singhvi, who appeared for ORIND,
vehemently contended that the rejection of the application of ORIND for a
mining lease was contrary to the statutory mandate in Section 11(2);
that, subject only to
the provision contained in Section 11(1) which had no application here, the
earliest applicant was entitled to have a preferential right for the grant of a
lease;
and that a
consideration of the comparative merits of other applicants can arise only in a
case where applications have been received on the same day. It is no doubt true
that Section 11(2) of the Act read in isolation gives such an impression which,
in reality, is a misleading one. We think that the sooner such an impression is
corrected by a statutory amendment the better it would be for all concerned. On
a reading of Section 11 as a whole, one will realise that the provisions of
sub-section (4) completely override those of sub-section (2). This sub-section
preserves 48 to the S.G. a right to grant a lease to an applicant out of turn
subject to two conditions: (a) recording of special reasons and (b) previous
approval of the C.G. It is manifest, therefore, that the S.G. is not bound to
dispose of applications only on a "first come, first served" basis.
It will be easily appreciated that this should indeed be so for the interests
of national mineral development clearly require in the case of major minerals,
that the mining lease should be given to that applicant who can exploit it most
efficiently. A grant of ML, in order of time, will not achieve this
result."
Even under ordinary
principles of statutory interpretation, the first proviso to Section 11(2)
embraces the field that is covered by the main provision. [Vide Abdul Jabar vs.
State of J&K., AIR 1957 SC 281 (para 8) and Ram Narain Sons vs. Asst. CST,
1955 (2) SCR 483 at 493].
Accordingly, we are
of the view that the notification calling for applications referred to in the
first proviso to Section 11(2) applies only to virgin areas.
34) It is the claim
of Jindal and Kalyani that the proviso to Section 11(2) of the Act sets out a
plenary rule for consideration of applications for mining leases where the
State Government has invited applications for mineral concessions by
notification in the official gazette and the applications pending on the date
of notification must be considered simultaneously with applications filed in response
to the notification and within the notification period. It is also their claim
that since there is no provision in the rules empowering the State Government
to issue notification inviting applications for mineral concessions apart from
Rule 59(1), it is asserted by Jindal and Kalyani that a notification inviting
applications for mineral concessions in the proviso to Section 11(2) must
necessarily relate only to a notification under Rule 59(1) inviting
applications for mineral concessions in previously held or reserved lands.
Therefore, according to them, the proviso's stipulation that applications for
mineral concessions pending on the date of the said notification inviting applications
must be considered, must necessarily apply to applications pending in receipt
of previously held lands. It is also contended that the proviso to Section
11(2) and Rule 59(1) use identical phraseology when referring to areas
(available for grant). It was pointed out that since this language is not
present in Section 11(4), this suggests strongly that Rule 59(1), the proviso
to 50
Section 11(2), Section 11(3) and Rule 35 form a composite code dealing with the
consideration of applications for mineral concessions over lands thrown open
for grant by way of notification under Rule 59(1) and that Section 11(4) does
not apply to such applications.
35) We have already
held that Section 11(3) specifies the matter relevant for purposes of second
proviso to Section 11(2). We also referred to the Committee's Report. In
accordance with the recommendation in the said Report, Section 11(3)(d) was
added as part of the substitution of Section 11 in the year 1999. Sub-section
(d) provides that "the investment which the applicant proposes to make in
the mines and in the industry based on minerals" and it speaks about
investment proposed to be made and not past investments. Thus it confines the
concept of "captive consumption of minerals to proposed investment and not
past investments". Even the residuary clauses in Section 11(3)(e) are
limited to "matters as may be prescribed", which would necessarily
mean matters prescribed by rules. This is fortified by decision of this Court
in BSNL Ltd. & Anr. vs. BPL Mobile Cellular Ltd. & Ors., (2008) 13 SCC
597, para 45.
36) We have already
quoted sub-section (4) of Section 11 which contemplates a situation where a
notification is issued inviting applications for an area for grant. In contrast
to the first proviso to Section 11(2), it provides that all applications
received pursuant to a notification shall be considered simultaneously without
assigning any priority in point of time, and after taking into account the
matters specified in Section 11(3). Section 11(4), in effect, covers exactly
the same field as the first and second proviso to Section 11(2) read along with
Section 11(3) with one difference, i.e., unlike the first proviso to Section
11(2), it provides for consideration of only those applications that are made
pursuant to the notification and not those made prior to the notification.
Notification under Section 11(4) is consistent with Rule 59(1) read with Rule
60 insofar as applications received prior to the notification would not be
entertained. The first proviso to Section 11(2) was being added to cover virgin
areas, then provided for the addition of Section 11(4), in order to ensure that
the notification referred to in Rule 59(1) together with Rule 60 would not
render ultra vires the MMDR Act. In view of the same, the contention on behalf
of Jindal and Kalyani that the first proviso of Section 11(2) would cover
notifications under Rule 59(1) is unacceptable because this would render
Section 11(4) otiose and redundant. In J.K. Cotton Spinning & Weaving Mills
co. Ltd. vs. State of U.P., AIR 1961 SC 1170 and O.P. Singla & Anr. vs.
Union of India & Ors. (1984) 4 SCC 450, this Court held that a provision in
a statute must not be so interpreted as to reduce another provision to a
"useless lumber" or a "dead letter". If we accept the said
position, it would result in anomalous consequences of rendering Rule 60 ultra
vires the first proviso to Section 11(2). In fact, this has been highlighted by
the Central Government in their affidavit filed before the High Court.
37) In addition to
what we have stated, it is relevant to note that Section 11(5) again carves out
an exception to the preference in favour of prior applicants in the main
provision of Section 11(2). It permits the State Government, with the prior
approval of the Central Government, to disregard the priority in point of time
in the main provision of Section 11(2) and to make a grant in favour of a
latter applicant as compared to an earlier applicant for special reasons to be
recorded in writing. It also gives an indication that it can have no
application to cases in which a notification is issued because, in such a case,
both the first proviso to Section 11(2) and Section 11(4) make it clear that
all applications will be considered together as having been received on the
same date. In view of our interpretation, the proceedings of the Chief Minister
and the recommendation dated 06.12.2004 are contrary to the Scheme of the MMDR
Act as they were based on Section 11(5) which had no application at all to applications
made pursuant to the notification dated 15.03.2003.
38) We have already
extracted Rules 59 and 60 and analysis of those rules confirms the
interpretation of Section 11 above and the conclusion that it is Section 11(4)
which would apply to a Notification issued under Rule 59(1). Rule 59(1)
provides that the categories of areas listed in it including, inter alia, areas
that were previously held or being under a mining lease or which has been
reserved for exploitation by the State Government or under Section 17A of the
Act, shall not be available for grant unless (i) an entry is made in the
register and (ii) its availability for grant is notified in the Official
Gazette specifying a date not earlier than 30 days from the date of
notification. Sub-rule (2) of Rule 59 empowers the Central Government to relax
the conditions set out in Rule 59(1) in respect of an area whose availability
is required to be notified under Rule 59 if no application is issued or where
notification is issued, the 55
30-days black-out period specified in the notification pursuant to Rule
59(1)(i)(ii) has not expired, shall be deemed to be premature and shall not be
entertained. As discussed earlier, Section 11(4) is consistent with Rules 59
and 60 when it provides for consideration only of applications made pursuant to
a Notification. On the other hand, the consideration of applications made prior
to the Notification, as required by the first proviso to Section 11(2), is
clearly inconsistent with Rules 59 & 60.
In such circumstances,
a harmonious reading of Section 11 with Rules 59 and 60, therefore, mandates an
interpretation under which Notifications would be issued under Section 11(4) in
the case of categories of areas covered by Rule 59(1). In those circumstances,
we are unable to accept the argument of learned senior counsel for Jindal and
Kalyani with reference to those provisions.
39) The Division
Bench has clearly erred in concluding that applications made prior to the
notification under Rule 59(1) which are premature and cannot be entertained under
Rule 60 would revive upon issuance of the Notification. This conclusion goes
against basic principles of statutory interpretation. We have already pointed
out the effect of Rule 60 which is couched in negative language that is
mandatory in nature. Further, if that was the intention of the Legislature,
there was no reason for the Legislature to take pains to state in Rule 60(b)
that an application made during the black-out period of 30 days specified in
the Notification also would be premature and could not be entertained.
Accordingly, the interpretation placed by the Division Bench on Rule 60 would
result in reading in a proviso at the end of Rule 60 to the effect that once
the 30-days black-out period specified in the Notification contemplated by Rule
59(1)(ii) is over, premature applications would revive. After taking such pains
to make it clear that the applications would not be entertained until the end
of the 30-days period, surely the Legislature itself would have inserted such a
proviso at the end of Rule 60 if that were its intention.
40) In Amritlal
Nathubhai Shah & Ors. vs. Union Government of India & Anr., (1976) 4
SCC 108 (para 7), this Court observed as follows:
"..... Rule 60
provides that an application for the grant of a prospecting licence or a mining
lease in respect of an area for which no such notification has been issued,
inter alia, under Rule 59, for making the area available for grant of a licence
or a lease, would be premature, and "shall not be entertained and the fee,
if any, paid in respect of any such application shall be refunded." It
would therefore follow that as the areas which are the subject-matter of the
present appeals had been reserved by the State Government for the purpose stated
in its notification, and as those lands did not become available for the grant
of a prospecting licence or a mining lease, the State Government was well
within its rights in rejecting the applications of the appellants under Rule 60
as premature. The Central Government was thus justified in rejecting the
revision applications which were filed against the orders of rejection passed
by the State Government."
41) Even thereafter,
this Court has consistently taken the position that applications made prior to
a Notification cannot be entertained. In our view, the purpose of Rule 59(1),
which is to ensure that mining lease areas are not given by State Governments
to favour persons of their choice without notice to the general public would be
defeated. In fact, the learned single Judge correctly interpreted Section 11
read with Rules 59 and 60. The said conclusion also finds support in the
decision of this Court in State of Tamil Nadu vs. M.S. Hindstone &
Ors., (1981) 2 SCC
205 at page 218, where it has been held in the context of the rules framed
under the MMDR Act itself that a statutory rule, while subordinate to the
parent statute, is otherwise to be treated as part of the statute and is
effective. The same position has been reiterated in State of U.P. vs. Babu Ram
Upadhya, (1961) 2 SCR 679 at 701 and Gujarat Pradesh Panchayat Parishad &
Ors. vs. State of Gujarat &
Ors., (2007) 7 SCC
718. The Division Bench did not advert to these aspects as analyzed by the
learned single Judge. On the other hand, the Division Bench accepted Jindal's
contention that if Rule 60 is interpreted to render applications made prior to
Rule 59(1) Notification non est, it would make Rule 59(2) unworkable because
persons normally apply for mining lease areas along with an application for relaxation
under Rule 59(2). This conclusion is clearly misplaced. It is only the request
under Rule 59(2) of any person for relaxation in respect of an area that is
considered and not the application for grant. Only after the relaxation under
Rule 59(2) by the Central Government of the requirement of Notification under
Rule 59(1) that applications could be considered for grant of mining lease. The
decision relied on by the learned senior counsel for Jindal in TISCO (supra),
(paras 42, 44 and 47), that applications made by certain parties were
considered after a relaxation under Rule 59(2) cannot be taken as laying down
any law. It is also seen that consideration of the applications made by various
parties in the TISCO's case was pursuant to the directions issued by this Court
and not independently by the State Government under Section 11 of the Act. As a
matter of fact, the issue whether premature applications revived for
consideration after the relaxation under Rule 59(2) was neither expressly
raised nor decided in the TISCO's case.
In the light of the
above discussion about Section 11(2) alongwith Rules 59 and 60, it should be
interpreted that Section 11(2) is to cover virgin areas alone. In view of the
same, the Jindal's application made prior to the Notification cannot be
entertained along with the applications made pursuant to the Notification dated
15.03.2003 because it is Section 11(4) which covers the said Notification along
with Rule 59(1) and not the first proviso to Section 11(2) as contended by the
respondents.
Issue (c) Whether the
order of the High Court of Karnataka in Ziaulla Sharieff's (supra) permit the
consideration of the Jindal's application dated 24.10.2002 which was made prior
to the notification dated 15.03.2003.
42) We have already
discussed this issue. In addition to the same, perusal of the order of the High
Court in Writ Petition No. 35915 of 2001 shows that the State Government was
directed to consider only the application of the MSPL and the applications
filed by the impleading applicants and others pursuant to the Notification
dated 15.03.2003 in accordance with law and in terms of the provisions of the
MMDR Act and MC Rules. In other words, the High Court did not issue any
direction to consider all applications made prior to the notification. To put
it clear, there was no mandamus from the High Court to consider prior
applications. The word "others" qualify the phrase "pursuant
to" and not the class of applicants who had applied even prior to the "Held
Area Notification"
dated 15.03.2003. As
a matter of fact, the High Court had merely directed the State Government to
consider the applications in accordance with the provisions of the MMDR Act and
MC Rules. Even otherwise, the said order was passed without going into the
specific provisions in the Act or Rules. Further, the order does not deal with
the interpretation of Section 11 or Rules 59 and 60. Hence, the order of the
High Court of Karnataka in Ziaulla Sharieff's case does not permit the
consideration of Jindal's application dated 24.10.2002 which was made prior to
the notification dated 15.03.2003.
Issue (d):
Whether Rule 35 of
the MC Rules justify the recommendation of the State Government and the
proceedings of the Chief Minister in favour of the Respondents - Jindal &
Kalyani? "Rule 35. Preferential rights of certain persons - Where two or
more persons have applied for a reconnaissance permit or a prospecting licence
or a mining lease in respect of the same land, the State Government shall, for
the purpose of sub-section (2) of section 11, consider besides the matters
mentioned in clauses (a) to (d) of sub-section (3) of section 11, the end use
of the mineral by the applicant. "
We have already
adverted to the proceedings of the Chief Minister which heavily relied on Rule
35 to justify the recommendation in favour of the respondents - Jindal and
Kalyani on the premise that it is intended to give preference to those who have
made existing investments in industries based on iron ore and both of them
qualify on this consideration.
From a plain reading
of Rule 35, it is clear that the rule permits the State Government to
differentiate between the "end use" of the minerals for the purpose
of sub-section (2) of Section 11 in addition to the matters in Section 11(3).
In the case on hand, all the parties, namely, MSPL, Sandur, Jindal and Kalyani
expressed their intention to use iron ore from the mines for producing steel
and, therefore, the same "end use"
requirement is
satisfied.
43) Rule 35, at best,
permits the State Government to differentiate between different "end
uses", for example, the use of iron ore to produce sponge iron instead of
steel, or the use of gold in jewellery as compared to medicines. Further, Rule
35 does not differentiate between "proposed" and "existing"
end use. Therefore,
it could have enabled the State Government to take into account the claim of
the respondents - Jindal and Kalyani, whose past investments would not have
qualified on the "proposed" investment criterion under Section 11(3)(d),
in addition to MSPL and Sandur. This could have been a basis to exclude those
with proposed investments in steel plants from consideration.
44) It is also
relevant to point out that Rule 35 specifies one additional factor apart from
the factors set out in Section 11(3). The plain language of Rule 35 requires
its application only in cases covered by Section 11(2) and not by Section
11(4). Therefore, to the extent that it is Section 11(4) that covers
Notification under Rule 59(1) and not Section 11(2), in this way also, the
State Government committed an error in relying on Rule 35 to exclude the
appellants, i.e., MSPL and Sandur. To justify the recommendation in favour of
the respondents-Jindal and Kalyani, in the proceedings of the Chief Minister,
State heavily relied on Rule 35 on the premise that it is intended to give
preference to those who have made existing investments in industries based on
iron ore and that the respondents - Jindal and Kalyani, qualify on this
consideration. However, as discussed above, Rule 35 only permits the State
Government to take additional factor of the "end use" of the minerals
and not the existing investments made by the applicants. Moreover, relying on
the existing investments made, the respondents also does not satisfy the
requirements under Section 11(3)(d) which talks solely about proposed
investments to be made and not the existing ones.
Issue (e):
Whether the criterion
of captive consumption referred to in the TISCO's case has no application to
the present case because it is not one of the factors referred to in Section
11(3) or even in Rule 35.
45) The criterion of
captive consumption referred to in TISCO's case (supra) does not have any
application in this case, which we will refer in the later part of this
paragraph.
Section 11(4) and
even the second proviso to Section 11(2) provide that the State Government may
grant, inter alia, a mining lease after taking into consideration the matters
specified in Section 11(3). Section 11(3)(d) specifies "the investment
which the applicant proposes to make in the mines and in the industry based on
the minerals" as one of such matters and on a plain interpretation, it is
clear that only the proposed investment is a relevant factor. If the
Legislature had intended that it should include past investments also, the use
of the word "proposed" is superfluous, which could never be the case.
Learned senior counsel appearing for the respondents have not pointed out any
other provision in the MMDR Act or the MC Rules permitting grant of mining
lease based on past commitments or for captive purposes in existing industries.
46) As observed in
the earlier paragraphs, the strong reliance placed by the respondent-Jindal on
the decision of this Court in TISCO's case (supra) (Paras
9,15,20,25,27,34,54,56 & 57) is misplaced. This case concerned solely on
the interpretation of Section 8(3) of the MMDR Act in the context of a second
renewal of a mining lease in favour of TISCO, and not a fresh grant. It is, in
this context the phrase "interest on mineral development" in Section
8(3) was interpreted to include captive requirements. On the other hand, the
case of fresh grant is covered by Section 11 of the MMDR Act. Paragraph 54 of
the TISCO's case (supra) makes it clear that the case concerned is chromite
whose known reserves were not abundant, whereas iron ore is in abundance. Even
otherwise, this judgment is of no assistance even on Rule 59(1) of the MC Rules
since it was a case of relaxation by the Central Government under Rule 59(2),
as is clear from paragraph 15 of the judgment.
47) It is useful to
mention that subsequent to the decision in TISCO (supra), this Court in Indian
Charge Chrome Ltd. & Anr. vs. Union of India & Ors., (2006) 12 SCC 331
(Paras 20 & 26) held that considerations of captive mining cannot be the
controlling factor for grant of lease.
Issue (f):
Whether factors such
as past commitments made by the State Government to applicants who have already
set up steel plants is not a relevant matter for consideration for grant of
lease.
48) As discussed
earlier, the State Government is denuded of all legislative and executive power
under Entry 23 of List-II read with Article 162 after passing of the MMDR Act
which are as under:- "Entry 23, List II: Regulation of mines and mineral
development subject to the provisions of List I with respect to regulation and
development under the control of the Union."
"Article 162.
Extent of executive power of State.- Subject to the provisions of this
Constitution, the executive power of a State shall extend to the matters with
respect to which the Legislature of the State has power to make laws.
Provided that in any
matter with respect to which the Legislature of a State and Parliament have
power to make laws, the executive power of the State shall be subject to, and
limited by, the executive power expressly conferred by this Constitution or by
any law made by Parliament upon the Union or authorities thereof."
It is clear that the
State Government is purely a delegate of Parliament and a statutory
functionary, for the purposes of Section 11(3) of the Act, hence it cannot act
in a manner that is inconsistent with the provisions of Section 11(1) of the
MMDR Act in the grant of mining leases. Furthermore, Section 2 of the Act
clearly states that the regulation of mines and mineral development comes
within the purview of the Union Government and not the State Government. As a
matter of fact, the respondents have not been able to point out any other
provision in the MMDR Act or MC Rules permitting grant of mining lease based on
past commitments. As rightly pointed out, the State Government has no authority
under the MMDR Act to make commitments to any person that it will, in future,
grant a mining lease in the event that the person makes investment in any
project. Assuming that the State Government had made any such commitment, it
could not be possible for it to take an inconsistent position and proceed to
notify a particular area. Further, having notified the area, the State
Government certainly could not thereafter to honour an alleged commitment by
ousting other applicants even if they are more deserving on the merit criteria
as provided in Section 11(3).
49) In the case of
State of Assam & Ors. vs. Om Prakash Mehta & Ors., AIR 1973 SC 678,
this Court observed that the MMDR Act and MC Rules contain the complete code in
respect of the grant and renewal of prospecting licences as well as mining
leases in lands belonging to Government. In Quarry Owners Association (supra),
this Court again reaffirmed the notion that both the Central as well as the
State Government act as a mere delegates of Parliament while exercising the powers
under the Act and Rules. [Vide M.A.
Tulloch (supra),
Baijnath Kedio (supra), Kesoram's case (supra), and Bharat Cooking Coal Ltd.
(supra)]. From this, it becomes amply clear that the State Government has
divested of legislative and executive powers with respect to mines and minerals
development. In addition to the same, Anjum M.H. Gaswala (supra), Captain Sube
Singh (supra), Singhara Singh's case (supra), this Court repeatedly held that
the field of granting mining leases is covered by express statute and rules and
the grants must be made in accordance with the provisions of the Act and Rules
and no other consideration. From a perusal of the above settled legal position,
it becomes clear that the State Government cannot grant mining leases keeping in
mind any considerations apart from the ones mentioned in the MMDR Act and MC
Rules. In those circumstances, no extraneous considerations such as past
commitments made by the State Government to Jindal and Kalyani who have already
set up steel plants can be entertained by the State Government while granting
mining leases and must abide by the Act and Rules.
Issue (g):
Whether the
recommendation in favour of Jindal and Kalyani saved by operation of law of
equity? 50) The Law of Equity cannot save the recommendation in favour of
Jindal and Kalyani because it is a well settled principle that equity stands
excluded when a matter is governed by statute. This principle was clearly
stated by this Court in the cases of Kedar Lal vs. Hari Lal Sea, (1952) SCR 179
at 186 and Raja Ram vs. Aba Maruti Mali (1962) Supp. 1 SCR 739 at 745. It is
clear that where the field is covered expressly by Section 11 of the MMDR Act,
equitable considerations cannot be taken into account to assess Jindal and
Kalyani, when the recommendation in their favour is in violation of statute.
It was pointed out
that Kalyani does not have a commitment from the State Government regarding its
iron ore needs. In the proceedings of the State Government, there is only a
statement that it may apply for a lease. No doubt, Jindal has emphasized that
it has already set up its steel plant based on the commitments made by the
State Government to grant a mining lease and it is in need of iron ore for
these steel plants. As observed earlier, commitments made by the State
Government cannot be a relevant factor for grant of lease in the teeth of the
consideration set out in Section 11(3). If that was to be the sole criterion,
the State Government ought not to have notified the area vide `Held Area Notification'
dated 15.03.2003.
51) It was also
pointed out that Jindal has been mining a lease area of 85.50 hectares of
Mysore Minerals Limited, a Public Sector Undertaking through a joint venture in
terms of the commitment made by the State Government.
In addition, the
State Government has made a recommendation for grant of mining lease in favour
of Jindal and its sister concerns in the following areas:
(i) 188.128 hectares
in favour of M/s JSW Steel Limited in Donimalai Range, Sandur Taluk, Bellary
District.
(ii) 181.70 hectares
in favour of M/s. Vijaynagara Minerals Pvt. Ltd. In Donimalai Range, Sandur
Taluk, Bellary District.
(iii) 184.14 hectares
in favour of M/s. South West Mining Ltd. In Donimalai Range, Sandur Taluk,
Bellary District.
(iv) 200.73 hectares
in favour of M/s JVSL in Kumaraswamy range of Sandur Taluk, Bellary District,
which si the subject matter of the present SLP.
As a matter of fact,
MSPL had filed an affidavit in this regard before the Division Bench. It is not
clear whether Jindal has specifically denied the specific grants. By drawing
our attention to certain factual details, it was contended that Jindal has so
much iron ore and it actually exported iron ore for which reliance was made to
its annual reports during the years 2002-03 to 2005-06.
On the other hand, it
is the claim of the MSPL that in accordance with Section 11(3)(d) it had
proposed to set up a steel plant for which it required iron ore. It was also
brought to our notice that it had received permission from the State Government
in this regard. With reference to the allegation that MSPL has a mining lease
over an area of 722.94 hectares, it was pointed out that in actual it has a
lease over an area of 347.22 hectares only. On 05.06.2009, MSPL filed an
affidavit before the Division Bench stating that it holds only a single mining
lease granted over five decades ago and the major proportion of which has been
afforestated. It is also their grievance that the iron ore reserves in this
lease have almost been exhausted over a period of 58 years, since 1952. The
remaining iron ore cannot support a steel plant of the size that is being set
up by MSPL. Since the entire field of granting mining lease is covered by MMDR
Act and MC Rules, the State Government cannot use any consideration apart from
the ones mentioned in the Act and Rules.
Issue (h):
About the impugned
judgments of the single Judge and Division Bench:
52) In view of our
conclusion, the Division Bench has erred in concluding that the Jindal's
application made prior to the Notification can be entertained along with the
applications made pursuant to the said Notification because it is not Section
11(4) which covers the said Notification under Rule 59(1) but the first proviso
to Section 11(2). As a matter of fact, the Division Bench did not even mention
Section 11(4) in its reasoning apart from stray references even though the
conclusion of the learned single Judge hinged on how Section 11(4) would be
rendered otiose and redundant if the first proviso to Section 11(2) was taken
as governing the consideration of applications under a Notification pursuant to
Rule 59(1).
53) The Division
Bench has also faulted in arriving at the conclusion that the applications made
prior to Notification under Rule 59(1) which are premature and cannot be entertained
under Rule 60 would revive upon issuance of the Notification which is clearly
not the case. As pointed out earlier, had that been the intention of the
Legislature, there was no reason for the Legislature to take pains under Rule
60(b) that an application made during the period of 30 days specified in the
Notification also would be premature and could not be entertained. If the
decision of the Division Bench is taken to its logical conclusion, then it
would result in reading in a proviso at the end of Rule 60 to the effect that
once the 30 days' period specified in the Notification contemplated by Rule
59(1) sub-clause (ii) is over, premature applications would revive. After
taking such pains to make it clear that the application would not be
entertained until the end of 30 days' period, surely the Legislature itself
would not have inserted such proviso in Rule 60 if that were its intention.
If such premature
applications are allowed to be entertained, it would result in the State
Government giving out mining leases to favoured persons without notice to the
general public.
54) The Division
Bench has also accepted Jindal's contention that if Rule 60 is interpreted to
render applications made prior to Rule 59(1) Notification non est, in that
event, it would make Rule 59(2) unworkable because persons will normally apply
mining lease areas along with an application for relaxation under Rule 59(2).
In view of our
earlier reasons, this conclusion is clearly misplaced. It is only the request
under Rule 59(2) for relaxation in respect of an area that is considered and
not the application for grant. It is only after the relaxation under Rule 59(2)
by the Central Government of the requirement of the Notification under Rule
59(1) that the applications could be considered for grant of mining lease.
55) Though the
learned single Judge in his order dated 07.08.2008 quashed the
communication/recommendation of the State Government dated 06.12.2004 proposing
to grant mining lease to Jindal and Kalyani, however, the learned single Judge
traveled much beyond the reliefs sought for in the writ petition and quashed
the entire Notification No. CI.16:MMM.2003 dated 15.03.2003. In our view, while
approving earlier part of his order and quashing the
communication/recommendation of the State Government dated 06.12.2004, the
other observations/directions are not warranted in the light of the provisions
of the Act and the Rules. The said observations/directions are deleted.
Issue (i):
Whether it is
advisable to remit it to the Central Government:
56) Learned senior
counsel appearing for Jindal and Kalyani requested that inasmuch as the Central
Government has already given its approval under Section 5 of the MMDR Act in
their favour during the pendency of the writ petition, if this Court feels that
fresh decision is to be arrived, the same may be remitted to the Central
Government. In the earlier part of our judgment, we have pointed out that the
Central Government considers only the materials forwarded by the State
Government along with its recommendation. As rightly pointed out, if the
recommendation of the State Government cannot be upheld in law, all
consequential orders including the subsequent approval by the Central
Government are also liable to be quashed. It is useful to refer Barnard vs.
National Dock Labour
Board (1953) 1 All E.R. 1113 at 1120 para 1, McFoy vs. United Africa Co. (1961)
All E.R.
1169, Pavani Sridhara
Rao vs. Govt. of A.P & Ors.
(1996) 8 SCC 298
(para 5) and State of Kerala vs.
Puthenkavu N.S.S.
Karayogam & Anr., (2001) 10 SCC 191 (para 9). If the very same
recommendation of the State Government is sent back to the Central Government
on the administrative side in its role as an approving authority under Section
5(1) without setting aside the impugned judgment, it is more likely that the
Central Government would simply follow its previous order. In that event, the
Central Government would be influenced by the judgment passed by the Division
Bench upholding the grant made in favour of Jindal and Kalyani. Such an exercise
would be in the nature of post-decisional hearing which would be impermissible.
[Vide H.L. Trehan & Ors. vs. Union of India & Ors., (1989) 1 SCC 764
(paras 12 & 13) K.I. Shephard & Ors. vs. Union of India & Ors.,
(1987) 4 SCC 431 (para 16) and Shekhar Ghosh vs.
Union of India &
Anr., (2007) 1 SCC 331]. It is also brought to our notice that as on date the
Central Government hears revision petitions through an Executive Officer and
without participation of a Judicial Member. It is also pointed out that the
exact procedure of the revisional Tribunal has kept changing over the last few
months. It is clear that it would not be an independent and efficacious
alternative forum in terms of the guidelines laid down by the Constitution
Bench in Union of India vs. R. Gandhi, President, Madras Bar Association, JT
2010 (5) SC 553.
As observed by three
Judge Bench of this Court in Indian Charge Chrome Ltd. (supra), when there was
no valid recommendation by the State Government for the grant of lease, there
cannot be any valid approval of the Central Government relying on the defective
recommendation. We have already concluded that the recommendation of the State
Government dated 06.12.2004 is not valid with reference to the provisions of
MMDR Act and the Rules, hence the invalid recommendation cannot be looked into
by the Central Government. Further, proviso to Section 5(1) itself provides
only for the Central Government either to grant or reject its approval to the
State Government's recommendation in the case of mining lease for a mineral
such as iron ore in the First Schedule. In our view, such consideration on the
administrative side does not involve consideration of all the applicants based
on their mining lease applications and after giving an opportunity of hearing.
Inasmuch as the Central Government does not have all relevant materials before
it, it may not be in a position to substitute itself for the State Government
and, if not, it would be proper, in fact, it would be inconsistent with the
provisions of the MMDR Act and the Rules to frame the issue on the
administrative side of the Central Government. Even otherwise, inasmuch as we
have heard the matter at length and we satisfy that there is a flaw in the
recommendation of the State Government which requires reconsideration, we
reject the request for remitting the matter to the Central Government for its
decision.
Conclusion:
57) In the light of
the above discussion, the impugned order of the Division Bench of the High
Court dated 05.06.2009 in Writ Appeal No. 5084 of 2008 and allied matters as
well as the decision of the State Government dated 26/27.02.2002 and the
subsequent decision of the Central Government dated 29.07.2003 are quashed. We
direct the State Government to consider all applications afresh in light of our
interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules and
make a recommendation to the Central Government within a period of four months
from the date of receipt of the copy of this judgment. It is made clear that we
have not expressed anything on the eligibility or merits of any of the parties
before us and our conclusion as to the decision of the State Government is
based on the interpretation of the statutory provisions mentioned above for
which we adverted to certain factual details of the parties. The State
Government is free to consider the applications and take a decision one way or
other in accordance with law, as discussed above, within the time scheduled.
58) All the appeals
are allowed to the extent mentioned above. No costs.
..........................................J.
(P. SATHASIVAM) ..........................................J.
(H.L. DATTU) NEW
DELHI;
SEPTEMBER 13, 2010.
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