TaxTMI 
TaxTMI 
2010 (7) TMI 1186
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....ight to preferential consideration in view of the fact that the petitioner's applications have been filed on the first date of availability and eligibility. Issue a writ of prohibition or any other appropriate writ, order or direction restraining the opposite parties from considering applications for Mineral Concessions of later applicants to the petitioner until the applications of the petitioner are first considered and disposed of by according priority or preferential right based on the petitioner being a first day applicant having applied for the concerned Mineral Concessions set out in the petition on the first date of availability and eligibility.' 2. The facts of the case are as given hereinbelow: 2.1 On 29.10.1991, the petitioner-company filed several applications for grant of Prospecting Licence and Mining Lease. According to .the petitioner, it has the preferential right for consideration of such applications for grant of Prospecting Licence and Mining Lease on account of the fact that it had filed the applications on the 1 st day of availability and eligibility in pursuance of a notification dated 23.8.1991 issued by the Govt. of Orissa in the De....
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....ndia. In the said MoU, as stated by the petitioner, it was agreed that opposite party No.1 would recommend to the Central Government (O.P.2) for grant of mineral concession and use its best efforts to obtain approval from opposite party No.2. After filing of the writ petition, on 9.1.2009, opposite party No.1 finally asked opposite party No.2 to accord prior approval for grant of mineral concession to POSCO opposite party No.3 purportedly under Section 11(5) of the Mines and Minerals (Development and Regulation) Act, 1957 (in short 'M.M.(D&R) Act') but without following proper procedure. 3. According to the petitioner, the area of 186 hects. in village Rantha in the district of Sundergarh applied for by it for Prospecting Lincence vide application no. 1334 dated 29.10.1991 for Iron Ore and Manganese Ore, is overlapping with the area applied for by POSCO. 3.1 The petitioner further submitted that the recommendation made in favour of POSCO was challenged by one Dhananjay Kumar Dagara before this Court in W.P.(C) No. 15315 of 2007 (hereinafter 'Dagara's case') wherein it was pleaded that the petitioner therein was entitled to preferential consideration on account....
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....ordingly, the petitioner was noticed under rule 12 (1) of the Rules to appear in person on 30.1.2001 and the petitioner attended the personal hearing. The said action taken by the Government in 2001 has not been challenged by the petitioner. Thus the said action of the Government in 2001 cannot be collaterally challenged in this writ petition in 2007. Such collateral and stale challenge without any explanation for the delay is not maintainable. In any event, the appropriate authority of the Government has not taken any final decision after the matter has been remanded by the revisional authority for hearing by the State. Hearing is continuing. It is open to the petitioner to appear before the Secretary in connection with his application for hearing. No final decision has been taken by the Secretary. So going by these facts, it cannot be said that the petitioner's case at the moment is ripe for interference by this Court. However, this Court considered all the points discussed above, since questions were raised about the competence and legality of the hearing process. 43. For the reasons discussed above, this Court is of the opinion that there is no merit in this writ petit....
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....ioner shall be considered strictly in accordance with law by passing a speaking order within a period of three months from today. In view of the above submission, we do not want to keep the writ petition pending and hence dispose of the same with a request to Opp. Party No.1 to consider the application of the petitioner for mineral concession by passing a speaking order within a period of three months from today.' Thereafter an application was filed by the State for extension of time to comply with the order of this Court dated 12.11.2008 and this Court by order dated 30.3.2009 passed in Misc. Case No. 2165 of 2009 extended the period by three months from the date of the order, i.e. 30.3.2009. 5.2 The petitioner by letter dated 28.11.2008 requested the State Government to consider its Mineral Concession applications in accordance with law as per the direction of this Court dated 12.11.2008. When the petitioner did not get any response to the said letter, it sent a reminder on 19.12.2008, but to no effect. Thereafter, when the petitioner came to know that the State Government is not going to accord priority or restrict the invocation of Section 11 (5) of the M.M.(D & R) Ac....
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....hree months' time for disposal of the applications of the petitioner. The stand of the State is that before expiry of the time granted by this Court on 30.3.2009, the present writ petition has been flied on 5.1.2009, by which date the State had not taken any decision on the same. The writ petition is therefore premature and does not merit consideration of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. As this Court has already directed the State to pass a speaking order, the petitioner could have waited till passing of such an order and if aggrieved, it could have challenged the said order before the Central Government by filing Revision Petition as prescribed under Section 30 of the M.M. (D&R) Act read with Rule-54 of the M.C. Rules. 6.2 As to the contentions of the petitioner in regard to the amended provisions of Section-11 of the M.M.(D&R) Act, it is averred that after the amendment, the preferential claim of the petitioner is not sustainable as it is contrary to the scheme of the Act and contrary to the clear language of the provisions. The applicability of Section-11 of the Act, as it stood before amendment, is tota....
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....ations for the area simultaneously and have decided to grant the area in favour of the most meritorious applicant in terms of the provisions of sections 11 (2), (3), (4) and (5) of the M.M. (D&R) Act. The State has further indicated that the mineral concession can be given to a later applicant out of turn under the provision of section 11 (5) of the Act. Therefore, according to the opposite party-State, the allegation of the petitioner that it has been discriminated in not considering its application is not correct. 6.6 So far as the interest of POSCO is concerned, it is indicated that the State is always entitled to override the preferential rights to earlier applicants subject to recording of special reasons under sub section (5) of Section-11 of the M.M.(D&R) Act. Thus, from time to time, considering the applications of the applicants, the State Government has either granted mineral concessions to an applicant basing on the date of filing or for special reasons, in accordance with the provisions of Section-11 and keeping the State's interest in view. 6.7 Regarding the specific allegation of the petitioner about the recommendation of P.L. application of M/s. Action Ispat & ....
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.... 7. Though several adjournments had been granted to the Union of India to file counter affidavit, it did not file its counter affidavit in time and ultimately when this Court passed order dated 13.5.2009 to the effect that 'if the Union of India fails to file counter affidavit by 10.6.2009, this Court will proceed with the matter in absence of any counter affidavit', the Union of India flied its counter affidavit. In the said counter affidavit the stand taken by the Union of India was that in terms of the provisions of M.M.(D&R) Act, 1957 and M.C. Rules, 1960, applications for grant of Mineral Concessions including Reconnaissance Permit, Prospecting Licence and Mining Lease are filed with the State Government, which is the owner of the minerals. The State Government evaluates the proposal in terms of the provisions of the M.M.(D&R) Act and M.C. Rules and accords preferential rights in terms of Section-11 of the M.M.(D&R) Act read with Rule-35 of M.C. Rules for grant of Mineral Concession to an applicant. Only in case of a mineral listed in the First Schedule to the M.M.(D&R) Act, prior approval of the Central Government is obtained by the State Government before granting th....
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....n Sundargarh district In accordance with the M.M.(D&R) Act, 1957 and M.C.Rules,1960. It is further indicated that parts of the Khandadhar area were thrown open for re-grant vide notification No. SRO 647/1991 dated 23.8.1991 published in Official Gazette dated 13.9.1991 issued under Rule 59 of the M.C.Rules. Pursuant to the said notification dated 23.8.1991, a number of applications have been filed for grant of Prospecting Licence and Mining Lease over the said area and the State Government after considering all the applications found POSCO to be the most meritorious amongst all the applicants and recommended its case to the Central Government for prior approval under Section 11 (5) of the M.M.(D& R) Act vide its letter dated 19.12.2006. The recommendation dated 19.12.2006 made by the State Government was challenged by Kudremukh Iron Ore Company Ltd (in short 'KIOCL') before this Court in W.P.(C) No. 1775 of 2007 and this Court by order dated 16.4.2007 disposed of the writ petition filed by KIOCL and directed the KIOCL to approach the Revisional Tribunal established under Section 30 of the M.M.(D&R) Act. The Revisional Application of the KIOCL was disposed of on 27.9.2007. Thereafte....
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....had determined the individual merits of all other applicants on the basis of personal hearing and additional information furnished by the respective applicants. 8.2 The further ground taken in the counter is that the manner of disposal of applications over the Khandadhar area was the subject matter of challenge in Dagara's case, wherein this Court has in no uncertain terms ruled that the applications for the areas notified under Rule 59 of the MC Rules deserve simultaneous consideration and that no applicant can have any preferential right of prior consideration solely on account of the fact that his application was filed on the first available date or a prior date. It is indicated that the principle of 'first come first serve' is not absolute and also does not apply to the areas notified in the Official Gazette. 8.3 The sum and substance of the contentions of POSCO is that no preferential right is available to the petitioner as claimed and the said position has already been clarified by this Court in the judgment rendered in Dagara's case as the preferential right of the first applicant does not survive after 1999 amendment. 8.4 It is further submitted that if at ....
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.... A.M. Singhvi, learned Senior Counsel for the petitioner, submitted that since the circumstances under which the petitioner approached this Court has been taken into consideration, it can be safely concluded that the petitioner does not have an alternative remedy. Learned counsel further submitted that no order whatsoever on the petitioner's P.L. application or in respect of opposite party No.3's application for grant of mineral concession has been passed till date, giving any scope to the petitioner to approach the Revisional Authority and several applications filed by different parties for P.L. and M.L. application over the area are pending for consideration of the State Government and no order has been passed. So the question of alternative remedy does not arise. According to him, the recommendation dated 9.1.2009 in favour of POSCO, could not have been the subject-matter of revision before the Central Government because even the said recommendation has not been produced before this Court by any of the opposite parties. The petitioner could only know about the alleged recommendation from the averments made in the counter affidavit filed by O.P.3 and according to it at best....
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.... petitioner should be allowed to agitate this matter before the Revisional Authority in revision application and time limit should be fixed for deciding the revision application by the Revisional Authority. 11.5 The State Government has also taken the same stand so far as availability of alternative remedy is concerned. 11.6 Perused the decisions reported in AIR 1995 SC-333 and AIR 2008 SC-1840 (supra) and more particularly the observations made in paragraph-6 of the latter judgment, which is not applicable to the facts and circumstances of the present case as in that case rejection order had been passed and communicated to A.H.Jaffar & Sons and no constitutional or other issues were raised for consideration of the Court. We may also refer to the decision of the Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, (1998) 8 SCC-1. In paragraph-15 of the said judgment it was observed thus: 'Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which .is that if an e....
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....roval. In the present case, from the minutes of the hearing, it is seen that the reasons cited by the State Government for recommending the case of opposite party No.3 are the very criteria of Section 11(3). Those are not the 'special reasons' in terms of section 11(5). Even the Central Government in its Policy formulated in June 2009 has made it clear to the State Governments that 'special reasons' under Section 11 (5) cannot be the same as indicated in Section 11 (3) but must be much stronger reasons. Paragraph 8.13 of that policy is quoted herein below: 'It has been generally noticed that the State Government~ have been invoking the parameters given in Section 11(3) of MMDR Act while giving priority to later applicants under Section 11(5) of MMDR Act. It is pointed out that conditions at Section 11(3) are appropriate to choose from amongst applicants applying on the same day [real or deemed under Section 11(2)], and the conditions under Section 11(3) are not the same as the 'special reasons' mentioned in Section 11(5) of the Act. Xxx xxx xxx and these special reasons have to be stronger than the matters referred to in Section 11(3) of die MMDR Act....
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....State of Maharashtra v. Digambar, AIR 1995 SC 1991, wherein it has been held that ((where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement for such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily'. 13.2 Learned counsel for the Union of India submitted that the petitioner has invoked the writ jurisdiction after inordinate delay of over one and a half decades, which is not justified. So the writ petition should not be entertained. Learned counsel placing reliance on the decision in Dagara's case submitted that the petitioner is not entitled to any relief whatsoever and his further contention was that though the petitioner has flied applications on 29.10.1991, admittedly it did not do anything till 2004 save and except sending representations, as stated by the petitioner, to the State Government for consideration of....
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....ssa, Department of Steel & Mines on the Revision Application filed by M/s Larson & Tubro Ltd. In paragraph 2 (iii) of the aforesaid communication views have been given in regard to the P.L. Application filed by the petitioner over an area of 173.00 hects in village Khajuridihi R.F. of Sundergarh district. 13.5 Fact remains, though the above communication, is not related to Khandadhar block, which is the subject-matter of dispute in the present writ petition, from said document it is clearly evident that the applications of the petitioner for P.L. and M.L. were under consideration on 5.11.2004. That apart, this Court in its order passed on the intervention application filed by the petitioner in Dagara's case has categorically held that there is no cause of action for the intervener to file the intervention petition, but observed that the said order will not prevent the intervenor from taking steps independently in respect of his grievance, if any. The State Government was considering the applications of the petitioner. No adverse order was passed on its applications. The question of approaching the Court did not, therefore, arise then. That apart, a bare reference to the order....
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....tition on the ground of delay and laches is rejected.14. Issue no. 5 Whether the area in question was earlier reserved or it is a non-reserved area? One of the prayers of the petitioner in this writ petition is to quash Notification No. 5988-MG dated 5.6.1962, Notification No. 11791/MG dated 6.12.1962 (hereinafter called '1962 Notifications') and the Notification bearing S.R.O. No. 647/91 dated 23.8.1991 published in the official gazette on 13.9.1991 (hereinafter called '1991 Notification') . 14.1 According to learned counsel for the petitioner, there is no reserved area in the eye of law because in 1962, when the notifications were issued, the State Government had no power or jurisdiction or authority to reserve the minerals over the areas either for itself or for exploitation in the public sector. 1962 notifications, according to the petitioner, are therefore, ultra vires of the M.M. (D & R) Act as it stood then. Since the 1962 notifications are void, the 1991 notification having been issued under Rule-35 could be of no effect. In order to substantiate its argument, the petitioner submitted that the M.M. (D & R) Act came into effect on 10.6.1958. It containe....
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....and in the followed up judgments mentioned above. 14.3 Learned counsel for the Union of India submitted that the principle as enshrined in the Constitution is reflected in the M.M. (D & R) Act and the principle employed as well as Section 2 of the M.M. (D & R) Act clearly amplifies this provision. The Preamble to the M.M. (D & R) Act, 1957 clearly states that the Act provides for the development and regulation of mines and minerals under the control of the Union. Section 2 of the M.M. (D & R) Act contains the declaration that in the 'public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided'. It is submitted by the learned counsel for the Union of India that from the scheme of M.M. (D & R) Act and MC Rules, it is abundantly clear that the State Government is the owner of the minerals. However the Union, in public interest, for the purpose of development and regulation of mines and mineral has retained control of itself in the matter of regulation of mines and development of minerals, where in respect of grant of a Reconnaissance Permit or licence for prospecting of Mineral or....
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....t a mineral for, as has been stated, it was its own property. There is therefore no reason why the State Government could not, if it so desired, 'reserve' any land for itself, for any purpose, and such reserved land would then not be available for the grant of a prospecting licence or a mining lease to any person. 6. We have gone through Sub-Sections (2) and (4) of Section 17 of the Act to which our attention has been invited by Mr. Sen on behalf of the appellants for the argument that they are the only provisions for specifying the boundaries of the reserved areas, and as they relate to prospecting or mining operations to be undertaken by the Central Government, they are enough to show that the Act does not contemplate or provide for reservation by any other authority or for any other purpose. The argument is however untenable because the aforesaid Sub-Sections of Section 17 do not cover the entire field of the authority of refusing to grant a prospecting licence or a mining lease to anyone else, and .do not deal with the State Government's authority to reserve any area for itself. As has been stated, the authority to order reservation flows from the fact that the....
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....M.C. Rules was obliterated from the statute book by virtue of subsequent amendment to Rule. It is worthwhile to mention here that in terms of the GSR 449 (E) dated 13.4.1988, Rule-58 of M.C. Rules stood omitted from 1960 Rules. There was no saving clause with regard to any action taken under the said nile. Rule-58 did not have any saving clause and it having being wiped out from the statute book, any action taken under it having not been saved, the 1962 notifications also lost their force after 13.4.1988. In this regard, we may refer to paragraph -19 of the decision of the Apex Court in the case of M.A. Tulloch (supra), which is quoted herein below: '19. Before proceeding further it will be convenient to clear the ground by adverting to two matters: (1) The effect of a Central Act under its exclusive legislative power which covers the field of an earlier State Act which was competent and valid when enacted is not open to doubt. The Parliamentary enactment supersedes the State law and thus it virtually effects a repeal, (2) the effect in law of a repeal, if it is not subject to a saving as is found in Section 6 of the General Clauses Act is also not a matter of contr....
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....ications of 1991 issued on 23.8. 1991 as non-est in the eye of law. In view of the aforesaid findings, there is no need to delve into the merits of the argument advanced by the petitioner that the decision of the Apex Court Amritlal (supra) contradicts with the views taken by larger Bench in the case of Hingir Rampur (supra), M.A. Tulloch (supra) and Baijnath Kadio (supra) and also per-incuriam and hence not binding. The question becomes academic. 15. Issue No.6, and 7 are:. Whether the petitioner has any preferential right under Section-11 of the M.M. (D & R) Act ? Whether recommendation made by the State Government under Section 11 of the M.M. (D&R) Act in favour of POSCO is valid? 15.1 According to the petitioner, it has applied for the area In question on 29.10.1991 and it stands on a better position so far as the merit is concerned in terms of the criteria set out under Section 11 (3) of the Act, read with Rule 35 of the M.C. Rules. 15.2 So far as preferential right, as claimed by the petitioner, is concerned, which it claims on the basis of its application made on 29.10.1991, was under the pre-amended provisions of Section 11 (2) (3) and (4). The pr....
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....tion 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 specified 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, the State Government for the purposes of assigning priority under this sub section. Provided further that where any such application 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, as the case may be, to such one of the applicants as it may deem fit. 11(3). The matters 'referred to in Sub-Section (2) are the following: (a) any special knowledge of, or experience in, reconnaissance operations, prospecting operations o....
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....ves after the amendment.' 15.5 Even otherwise, it is pertinent to mention here that in Dagara's case, the validity of 1962 notifications was not challenged and the present case differs from the Dagara's case as the validity of 1962 notifications had never been questioned by both the parties in that case and Dagara's case proceeded on the premises that the area was reserved and notified one. So, what would be the effect of amendment where the area is non-notified area? In the pre-amended Section-11 (2), one will find that the person who has applied for a P.L. or M.L. in respect of the an area and whose application was received earlier, shall have preferential right for grant of Licence ~ Lease, as the case may be, over the applicant whose application was received later. Whereas, in the post amended section of 11 (2) as referred, the provision is that the applicant whose application was received earlier shall have preferential right to be considered for grant of R.P., P.L. and M.L. as the case may be. We, therefore hold that the petitioner is entitled to preferential right of consideration over later applicants whose applications were filed after 29.10. 1991. In this reg....
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.... 15.6 Fact remains, in the case of POSCO, its application though later, was considered pressing into service the provisions of section 11 (5) of the Act. Two conditions are required to be satisfied as per section 11(5), i.e. (i) that there must be 'special reasons' recorded in writing, and (ii) the prior approval of the Central Government (for minerals specified in the 1st Schedule) must be obtained before passing an order under Section 11(5) of the M.M.(D&R) Act. Similar was the position under Section 11 (4) prior to the amendment in December 1999. 15.7 The term 'special reasons' has not been defined in the M.M.(D&R) Act. As to what would constitute a 'special reason' for grant of mineral concession to a later day applicant in preference to an earlier day applicant must, therefore, be seen from the objects and reasons of the M.M.(D&R) Act. What is abundantly clear is that Section 11(5) provides for an exception from the general rule, that is, an earlier day applicant being given preference over a later day applicant. It also follows from the use of the term 'special' that the reasons must be out of the ordinary or exceptional as even mentioned b....
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....d examine inter-se merit of all the applications and then pass an order as per law after affording an opportunity of hearing to all the applicants. 15.10 The aforesaid order of the Revisional Authority was challenged before this Court in Dagara's case. This Court while dealing with the Writ petition disposed of the same with the following observation/ direction: 'In any event, the appropriate authority of the Government has not taken any final decision after the matter has been remanded by the revisional authority for hearing by the State. Hearing is continuing. It is open to the petitioner to appear before the Secretary in connection with his application for hearing. No final decision has been taken by the Secretroy. So going by these facts, it cannot be said that the petitioner's case at the moment is ripe for interference by this Court. However, this Court considered all the points discussed above, since questions were raised about the competence and legality of the hearing process' 15.11 So, the matter was left to the State Government to carry out the direction of the Revisional Authority, wherein it was categorically directed to consider the pending appl....
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.... thus: 'As the area applied for has not been prospected, the ML applications filed by some MOD signed companies cannot be considered. Further as per Government guidelines two MoU signed companies i.e M/s Jindal Stainless Ltd. (formerly M/s Jindal Strips Ltd.) and M/s POSCO India (P) Ltd. have achieved the milestones vis-a.-vis their respective MoUs. The case of JSL is being considered elsewhere. POSCO India (P) Ltd. on account of its ability to carry out scientific exploration and mining, capability to mobilize adequate financial resources needed to be invested in prospecting and mining and setting up of value addition facilities including a 12 MTPA steel plant based on eco-friendly and resource-use efficient technology, that will generate high order revenue and employment deserves precedence over all other applications filed both for notified and non notified areas. Hence, it can be safely concluded that M/s POSCO India (P) Ltd. stands out as the most meritorious among all the MoU signed applicants as well as other non-MoU applicants. Further, none of the ML applicants (whether MOD signed or not) has submitted legally acceptable prospecting report. Therefore,....
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....f discrimination and/or mala fide. Mala fide, though raised in the writ petition, yet the same has not been proved by cogent materials, but we are surprised to note that the State Government has taken different stands at different points of time for different applicants. 17. In the case of Shiv Kumar Agrawal v. State of Orissa (W.P.(C) No. 9775 of 2008), the counter affidavit filed by the State reveals that the applications received till 20.12.1999, i.e. the effective date of amendment, including those undisposed of applications received before 29.10.1991 were considered for determination of inter se merit. Accordingly, the State Government recommended the P.L. Application of M/s Bhushan Steel and Strips Ltd pursuant to 1991 notification for grant to the Central Government and the Central Government accorded its due approval. 18 Now in the present case, if we accept the statement made in the counter affidavit filed in the case of Shiv Kumar Agrawal (supra), 20.12.1999 being the closing date, then POSCO's application could not have been considered, which was filed on 27.9.2005. 19. We are unable to accept the contention of the learned Counsel for the State that the afor....
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....tion 11(5) of the M.M.(D&R) Act, "special reasons" for the same in terms of the guidelines dated 24.6.2009 issued by the Ministry of Mines, Government of India, be recorded in writing The State Government shall complete the entire exercise within a period of four months from today. 25. In view of the aforesaid conclusion, so far as intervention application of M/s VISA Steel Ltd. is concerned, we are of the view that if VISA has any cause of action, it is open to it to file independent writ application, if so advised. We reject the intervention application. We make no order as to cost. B.P. Ray, J. I have had the privilege of going through the judgment prepared by my esteemed brother Hon'ble Justice Das. While I am in complete agreement with the conclusion reached by Hon'ble Justice Das, I feel it necessary to amplify in regard to issue No. 5. I have gone through the judgment of the Gujarat High Court in the case of Amritlal Nathubhai Shah v. Union Government of India and Anr. AIR 1973 Guj. 117 passed by the Hon'ble Chief Justice P.N. Bhagwati of the Gujarat High Court (as His Lordship the then was), which was affirmed by the constitutional Bench of the Apex ....