JUDGMENT B.P. DAS, J. : The petitioner, Geomin Minerals & Marketing (P) Ltd. which is a Company incorporated under the Indian Compa¬nies Act, 1956, has filed this writ petition, inter alia with the following prayers: “Order the opposite parties to dispose of all pending applications for Mineral Concessions filed by the petitioner and set out in the petition in accordance with its vested right to preferential consideration in view of the fact that the petition¬er’s applications have been filed on the first date of availabil¬ity and eligibility. Issue a writ of prohibition or any other appropriate writ, order or direction restraining the opposite parties from consid¬ering 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 given hereinbelow:- 2.1 On 29.10.1991, the petitioner-company filed several application 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 1st day of availability and eligibility in pursuance of a notification dated 23.8.1991 issued by the Govt. of Orissa in the Department of Steel and Mines, (O.P.1), which was published in the Official Gazette on 13.9.1991, in terms of Rule 59(1) of the Mineral Concession Rules, 1960 (in short “M.C. Rules) whereby applications for grant of Prospecting Licence and Mining Lease in respect of various areas were invited and consequently mineral concessions were made available with effect from 29.10.1991. The notification is annexed as Annexure-1 to the writ petition and the various applications submitted by the petitioner for grant of Prospecting Licence and Mining Lease are annexed as Annexure-2 series. One of such applications is in respect of an area of 186 hects. in village Rantha in the dis¬trict of Sundergarh. The notification is annexed as Annexure-1 to the writ petition and the various applications submitted by the petitioner for grant of Prospecting Licence and Mining Lease are annexed as Annexure-2 series. One of such applications is in respect of an area of 186 hects. in village Rantha in the dis¬trict of Sundergarh. 2.2 While the applications of the petitioner were pending for consideration of the State Government, M.C. Rules was amended in 2002 to include Rule 63-A, which required opposite party No.1 to dispose of the applications for Reconnaissance Permits, Pros¬pecting Licence and Mining Lease within 6,9 and 12 months respec¬tively. Opposite party No.1 failed to take any action in dispos¬ing of the applications of the petitioner which had been pending since 1991 despite upteem number of reminders to opposite party No.1 and while the applications of the petitioner were still pending, POSCO India Pvt. Ltd, (‘POSCO’ hereinafter) which was subsequently impleaded as opposite party No. 3 by virtue of our order dated 13.5.2009 on its application for impleadment, had filed various applications for mineral concessions in September 2005 over areas in the districts of Keonjhar and Sundergarh par¬tially or wholly overlapping with the areas for which various applications were filed by the petitioner. 2.3 The further case of the petitioner is that when POSCO filed is applications for Mineral Concession, the petitioner’s applications had been pending for approximately fourteen years. The petitioner and it’s group of companies were in the process of setting up an Integrated Steel Plant in the State of Orissa with a capacity of 12 million tonnes per annum. It is further stated that petitioner came to know that on or about 22.6.2005 opposite party No.1 had entered into a Memorandum of Understanding (MoU) with POSCO, whereby opposite party No.1 agreed to grant Prospect¬ing Licence and Captive Mining lease for 600 million tonnes of iron ore to POSCO after approval of Government of India. In the said MoU, as stated by the petitioner, it was agreed that oppo¬site 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. In the said MoU, as stated by the petitioner, it was agreed that oppo¬site 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 Licence 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 recommenda¬tion 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 of the date on which he had filed application for Mineral Concession which was much prior to the application filed by POSCO. The present petitioner, on coming to know of the said writ petition, filed an application for intervention on 19.2.2008. During hearing of the aforesaid writ petition, opposite party No.1-State filed an affidavit before this Court on 19.2.2008 indicating therein that all pending applications concerning the notifications referred to above, would be heard afresh, consider¬ing the preferential rights of the applicants, if any. On 7.3.2008, the present petitioner received a notice from opposite party No.1 with regard to its application for Prospecting Li¬cence, being P.L. Application No. 1334, whereby the petitioner was directed to appear for a hearing on 10.4.2008. 3.2 According to the petitioner, it had earlier received a notice on 17.9.2007 for personal hearing pursuant to which it appeared before opposite party No.1 on 3.11.2007. Opposite party No.1, in fact acted upon the affidavit filed by it before this Court in W.P.(C) No. 15315 of 2007 and started re-hearing of the applications filed by the applicants. 4. 3.2 According to the petitioner, it had earlier received a notice on 17.9.2007 for personal hearing pursuant to which it appeared before opposite party No.1 on 3.11.2007. Opposite party No.1, in fact acted upon the affidavit filed by it before this Court in W.P.(C) No. 15315 of 2007 and started re-hearing of the applications filed by the applicants. 4. Vide order dated 22.2.2008, this Court dismissed the application for intervention filed by the present petitioner by recording that the petitioner did not have any cause of action and the dismissal order would not prevent the intervenor from taking steps independently in respect of his grievance, if any. Thereafter the judgment in WP(C) No. 15315 of 2007 (Dagara’s case) was delivered and in paragraph-42 and 43 of which it has been held thus:- “42. So far as the petitioner’s grievance about return of his application for prospecting licence after the same was recom¬mended with the approval of the Chief Minister is concerned, this has been dealt with in paragraph-15 of the counter affidavit dated 8.1.2008 filed by the State. In paragraph-15, it has been specifically stated that the contention of the petitioner that the petitioner’s application for prospecting licence dated 29.10.1991 is without defect is not correct at all. The said application had several defects which are pointed out in para¬graph-15. It was also stated that the Government of India after scrutiny of the proposal returned the same for fresh examination along with other applications which were proposed to have been recommended but were rejected. Accordingly, 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 chal¬lenged 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 explana¬tion for the delay is not maintainable. In any event, the appro¬priate authority of the Government has not taken any final deci¬sion after the matter has been remanded by the revisional author¬ity 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. In any event, the appro¬priate authority of the Government has not taken any final deci¬sion after the matter has been remanded by the revisional author¬ity 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 inter¬ference 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 petition and all the contentions of the writ petitioner fail. The writ petition is dismissed. There would be no order as to costs.” 5. The petitioner’s further case is that the judgment of this Court in the Dagara’s case did not deal with the matter in controversy in the present case, i.e. consideration of the appli¬cations as the first day applications and their priority over the later applications. As the petitioner’s applications were not considered, the petitioner filed W.P.(C) No. 6484 of 2008 on the allegation that the opposite parties failed to consider the applications of the petitioner within the time specified in Rule-63-A of the M.C. Rules. On 14.7.2008 this Court disposed of the aforesaid writ petition directing the opposite parties to dispose of the applications of the petitioner within six months, without any discrimination and in accordance with law. The relevant portion of the judgment is quoted hereinbelow. On 14.7.2008 this Court disposed of the aforesaid writ petition directing the opposite parties to dispose of the applications of the petitioner within six months, without any discrimination and in accordance with law. The relevant portion of the judgment is quoted hereinbelow. “xxx xxx we dispose of this writ petition with a direction to the State of Orissa in the Department of Steel and Mines to consider the pending P.L./R.P. application of the petitioner for the area excepting the area which is subject matter of the writ petition before the Hon’ble Delhi High Court and for which the intervener is the applicant as expeditiously as possible, prefer¬ably within a period of six months from the date of production of a copy of this order without any discrimination and in accordance with law.” 5.1 Thereafter the petitioner approached this Court in W.P.(C) No. 15424 of 2008 with a prayer to direct the opposite parties to dispose of all pending application for Mineral Conces¬sion filed by it in accordance with its vested right of preferen¬tial consideration in view of the fact that the petitioner’s applications had been filed on the first date of availability and eligibility. This Court disposed of the said writ petition on 12.11.2008 with the following orders:- “This writ petition has been filed for seeking a direction to the opposite parties that they should consider and dispose of the application for mineral concession filed by the petitioner in accordance with law. Heard Mr. Ranjit Kumar, learned counsel for the petitioner and Mr. S.K. Nayak, learned Senior Counsel for the opposite parties. Mr. Nayak, learned Senior Counsel assured us that the appli¬cation of the petitioner 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 re¬quest 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 exten¬sion 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. 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 invo¬cation of Section 11(5) of the M.M.(D&R) Act to unique cases, as set out in the earlier petition, the petitioner filed the present writ petition on the ground that it is entitled to get the pref¬erential right for obtaining a prospecting license and the oppo¬site parties have not acted in terms of section 11(5) of the M.M.(D&R) Act and there has been discrimination in the action of the State Government as because in many cases the State Govern¬ment has processed the application of the year 1991 in the years 2000, 2001, 2002, 2003, 2004 and 2005 by applying preferential right based on first day applicant status, which it has not done in the case of the petitioner. The opposite parties have favoured some other entities ignoring the application filed by he peti¬tioner as well as the vested preferential right accrued in favour of the petitioner. Petitioner further submits that in Dagara’s case opposite party No.1-State did not disclose before this Court that the State had granted at least 21 mineral concessions from 2000 to 2005, even after amendment of Section 11 in December 1999, based on preferential right to applicants and applications filed pursuant to same notification dated 23.8.1991. All these grants were with the approval of opposite party No.2. Therefore both opposite party Nos. 1 and 2 were well aware that after amendment also preferential right, at least to consider, was very much existing as per Section 11 and they had acted accordingly and change in their stand was only to favour POSCO. 6. The State Government, in its counter affidavit filed through the Commissioner-cum-Secretary to the Government of Orissa, Department of Steel & Mines, took the following stand. 6. The State Government, in its counter affidavit filed through the Commissioner-cum-Secretary to the Government of Orissa, Department of Steel & Mines, took the following stand. 6.1 The present writ petition is pre-mature on the ground that previously the petitioner had filed two writ petitions, the last one being W.P.(C) 1524 of 2008, which was disposed of on 12.11.2008 at the stage of admission and while disposing of the said writ petition, this Court directed the State Government to consider the applications of the petitioner for mineral conces¬sions by passing a speaking order within a period of three months from the ate of the order, i.e. 12.11.2008. Despite best effort, since the petitioner’s applications could not be disposed of within the time stipulated by the Hon’ble Court, a petition was filed to extend the time by ten months’ and this Court by its order dated 30.3.2009 granted another three 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 filed 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 would 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 amend¬ment, is totally misconceived. The applicability of Section-11 of the Act, as it stood before amend¬ment, is totally misconceived. Further it relied upon the judg¬ment passed by this Court on 2.5.2008 in W.P.(C) No. 15315 of 2007 (Dagara’s case) wherein it was held that the applicants for prospecting licence or mining lease could not claim that their applications were to be disposed of first on the basis of their claim of preferential right under the provision of Section 11(2) of the Act after amendment. 6.3 Apart from that, certain legal questions were raised in the counter affidavit, which were also raised by the learned counsel for the State during the course of hearing and the same shall be dealt with in this judgment. 6.4 It is also indicated in the counter affidavit that mere filing of an application for mineral concession does not confer any accrued right on the applicant unless the application is decided for grant in its favour in accordance with the provisions of the Act and the Rules. Hence, the allegation of violation of the petitioner’s fundamental right guaranted under Articles 14, 19 and 21 of the Constitution of India is a misnomer. 6.5 The further stand taken by the State in its counter affidavit is that the State Government has adopted a broad strategy to encourage value addition and end use of mineral inside the State. Due to enhancement of steel prices in the international market and demand of steel in recent past, a number of promoters were attracted to set up Steel Plants in the State due to its abundant reserve of iron ore. Regarding grant of prospecting licence over an area of 9.566 hectares in respect of the petitioner’s application dated 29.10.1991, it is indicated that all the applications filed for the area on the date of its availability were considered simultaneously and the P.L. was granted in favour of the most meritorious applicants after deter¬mination of their merits under provision of Sections 11(2) and (3) of the M.M. (D&R) Act and the M.C. Rules. The State Govern¬ment has received a good number of M.C. applications over the Khandadhar area which was notified on 23.8.1991. So far, 49 companies have signed MoU with the State Government to set up steel plants in the State, out of which, 28 have begun partial production. The State Govern¬ment has received a good number of M.C. applications over the Khandadhar area which was notified on 23.8.1991. So far, 49 companies have signed MoU with the State Government to set up steel plants in the State, out of which, 28 have begun partial production. As per the MoU, the promoter company will be consid¬ered for allocation of Mining Lease for iron ore after achieve¬ment of specified criteria/milestone. Therefore, the State Gov¬ernment has considered all the applications for the area simulta¬neously 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 applica¬tions 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 & Power (P) Ltd., it is indicated that the area applied for by the petitioner for P.L./M.L. is different from that of M/s. Action Ispat & Power (P) Ltd., though the area applied for by both are covered under the 1991 notification. 6.8 The sum and substance of the stand taken in the counter affidavit filed by the State is that the amendment made in 1999 to the M.M. (D&R) Act, 1957 clearly provides for a separate method of consideration of applications in respect of an area notified in the official gazette. As per the amended Act, the sole consideration for disposal of applications for the notified area is merit, as enumerated in sub-section (3) of Section-11. As per the amended Act, the sole consideration for disposal of applications for the notified area is merit, as enumerated in sub-section (3) of Section-11. Any attempt to dislodge the meritorious credentials of an appli¬cant in respect of an area notified in the official gazette is contrary to the meaning of plain reading of the Section-11 and negation of merit and preferential treatment of applicants based on chronological order would be detrimental to the mining indus¬try and lead to unscientific mining and wastage of scarce mineral resources. Preferential right, as used in Section-11, is neither a vested right nor a substantive right as it is not an absolute right enforceable in law. At best, the use of the term “preferen¬tial right” can only be resulted as an expectation of an earlier applicant that his application will be considered in preference to a later applicant. The State Government being otherwise empow¬ered under the statute can act in a manner contrary to the expec¬tations of an earlier applicant provided that special reasons are to be recorded subject to the test of reasonableness. The allega¬tions of the petitioner are unfounded and without any basis of law. The allegation of the petitioner that the State acknowledged the existence of prior applicants only because POSCO’s recommen¬dation was made under Section 11(5) of the Act is wrong and baseless. Though the earlier recommendation in favour of POSCO was made under Section 11(5) of the Act, it had taken into con¬sideration the other applications to determine the relative merits on the yardstick of Section 11(3) of the Act and in Daga¬ra’s case this Court has clarified that the preferential right in respect of the notified area, if any, does not survive after the 1999 amendment, for which the claim of the preferential right of the petitioner in this writ petition is not sustainable. 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 filed 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 Recon¬naissance 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 the Mineral Concession. Thereafter in the counter affidavit, the Union of India ultimately explains the different procedures of M.M.(D&R) Act and further contended that Iron Ore is the First Schedule mineral. The proposal under Section-11 of the Act falls under two categories, i.e. notified and non-notified. In case of notified area, applications are invited by the State Govern¬ment through gazette notification and all these applications received in pursuance of the said notification during the period specified in such notification are examined in terms of the provision of 11(3) of the M.M.(D&R) Act and the State Government grants the Mining Lease/Prospecting Licence/Reconnaissance Permit to such one of the applicants, as it may deem fit. In case of non-notified area, the underlying principle is “first come first serve”. However the area can be considered in favour of a later applicant in terms of Section 11(5) of the Act provided the same is supplemented with ‘special reasons’ for grant of the area in favour of such applicant. It is also indicated in the counter affidavit that the petitioner is confusing the principles of “preferential right” and “first come first serve” by citing Hoda Committee Recommendation, which is totally out of place and in a wrong context. 8. During the pendency of the writ petition, M/s. POSCO India Pvt. Ltd. filed Misc. Case No. 5480 of 2009 praying inter alia to be impleaded as a party to this proceeding. The prayer for intervention was allowed and subsequently POSCO filed its counter affidavit. 8. During the pendency of the writ petition, M/s. POSCO India Pvt. Ltd. filed Misc. Case No. 5480 of 2009 praying inter alia to be impleaded as a party to this proceeding. The prayer for intervention was allowed and subsequently POSCO filed its counter affidavit. In the counter affidavit filed by POSCO through its Director (Mining Division), it is indicated that POSCO, Korea has entered into a Memorandum of Understanding (MoU) dated 22.6.2005 with the Government of Orissa for setting up an integrated steel plant for a total production capacity of 12 million tonnes per annum at Paradeep in Jagatsinghpur District. Through this MoU, POSCO has proposed an investment of about US$ 12 billion or approximately Rs.54,000 crores for the said plant for carrying value additions in the State for a 100% export project. It is further stated that this investment is the largest ever Foreign Direct Investment in India. The MoU which spells out requirement of iron ore mines for captive use at the plant, POSCO applied on 27.9.2005 for grant of Prospecting Licence for Khan¬dadhar Block in Sundergarh 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 application have been filed for grant of Prospecting Licence and Mining Lease over the said area and the State Govern¬ment 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. The Revisional Application of the KIOCL was disposed of on 27.9.2007. Thereafter the State Government acting in compliance with the directions of the Revisional Authority issued notices under Rules 12 and 26 of the M.C. Rules to the applicants requiring them to furnish defi¬cient/additional information and to appear for personal hearing. During the course of hearing of those applications before the State Government, a writ petition was filed by one Dhananjaya Kumar Dagara (supra) challenging the order dated 27.9.2007 passed by the Revisional Tribunal. In the said writ petition, the State of Orissa, the Union of India and the Director of Mines (Govern¬ment of Orissa), POSCO and KIOCL were the opposite parties. The petitioner therein claimed the preferential right under Section 11 of the M.M.(D&R) Act and in alternative claimed that its application having been filed on 29.10.1991, ought to be disposed of in accordance with the law in force at that time by according preferential rights of a first applicant. This Court disposed of the writ petition filed by Dhananjaya Kumar Dagara (supra) vide judgment dated 2.5.2008 with the observation as indicated in the foregoing paragraph. 8.1 With regard to the survival of preferential right under the pre-amended provision of Section 11(2) of the M.M.(D&R) Act after its amendment in 1999, it was submitted that the same is no more res integra after the judgment in Dagara’s case. After such decision, the State Government considering all the applications basing on personal hearing and determination of inter-se merits and decided to recommend the POSCO’s application for grant of Prospecting Licence over a contiguous area of 2500 hectares (comprising of 2085 hectares of notified area and 415 hectares of non-notified available area) to the Central Government for ap¬proval under Section 11(5) of the M.M.(D&R) Act. The recommenda¬tion made vide communication dated 9.1.2009 sets out the special reason for which POSCO has been preferred over other applicants for the area. The special reasons cited in favour of such recom¬mendation include the details of the investment proposed by POSCO, ability to carry out scientific exploration and mining, financial capability, eco-friendly, resource efficient technolo¬gy, potential to generate high order revenue and employment opportunities in the State. The special reasons cited in favour of such recom¬mendation include the details of the investment proposed by POSCO, ability to carry out scientific exploration and mining, financial capability, eco-friendly, resource efficient technolo¬gy, potential to generate high order revenue and employment opportunities in the State. The communication dated 9.1.2009 also indicates that before recommending the application of POSCO, the State Government 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 o the MC Rules deserve simulta¬neous consideration and that no applicant can have any preferen¬tial 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 preferen¬tial right of the first applicant does not survive after 1999 amendment. 8.4 It is further submitted that if at all the petitioner in any manner is aggrieved by the action of the State Government in recommending the case of POSCO under Section 11(5) of the M.M.(D&R) Act, it can seek a revision of the order passed by the State Government before the Revisional Authority of the Central Government. 9. Though M/s VISA Steel Ltd. has filed an application for intervention, the same has not yet been considered. But we have heard the learned counsel for the intervener. 10. In the aforesaid factual background and rival contentions made in the writ petition as well as counter affida¬vits, the following issues emerge for consideration. 1. Whether the writ petition is maintainable due to avail¬ability of alternative remedy? 2. Whether the writ petition is premature? 3. Whether the writ petition is maintainable due to delay and laches? 4. 10. In the aforesaid factual background and rival contentions made in the writ petition as well as counter affida¬vits, the following issues emerge for consideration. 1. Whether the writ petition is maintainable due to avail¬ability of alternative remedy? 2. Whether the writ petition is premature? 3. Whether the writ petition is maintainable due to delay and laches? 4. Whether the writ petition is barred by res-judicata? 5. Whether the area in question was earlier reserved or it is a non-reserved area? 6. Whether the petitioner has any preferential right under Section-11 of the M.M.(D&R) Act? 7. Whether recommendation made by the State Government under Section 11(5) of the M.M.(D&R) Act in favour of POSCO is valid? The question of res-judicata shall be considered while dealing with other issues as it is intrinsically related to other issues. Some other miscellaneous issues raised in this case shall also be considered herein below. 11. Issue no.1 Whether the writ petition is maintainable due to availabili¬ty of alternative remedy? 11.1 Admittedly, under Section 30 of the M.M.(D&R) Act, 1957 read with Rule 54 of M.C. Rules, 1960, revision lies to the Central Government. Section 30 empowers the Central Government to revise any order made by the State Government or other authority of its own motion or on application made within the prescribed time by an aggrieved party, whereas Rule 54 of the M.C. Rules provides that “any person aggrieved by any order made by the State Government or other authority in exercise of the powers conferred on it by the Act or these Rules may, within three months of the date of communication of the order to him, apply to the Central Government in triplicate in Form-N, for revision of the order”. 11.2 To the question raised by the opposite parties regard¬ing maintainability of the writ petition, Dr. 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 reme¬dy. 11.2 To the question raised by the opposite parties regard¬ing maintainability of the writ petition, Dr. 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 reme¬dy. 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 application filed by differ¬ent 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 it can be said to be an application by the State Government to the Central Government in order to seek the Central Government’s prior ap¬proval under Section 11(5) of the M.M.(D&R) Act to enable the State Government to pass an order in favour of O.P.3 overriding the preferential right of the earlier applicant, such as the petitioner, because the prior approval is a necessary pre-condition to the passing of any order under Section 11(5) of the Act it is only after approval of Central Govt. under Section 11(5) if any order is passed and communicated rejecting petition¬er’s application for prospecting licence, the petitioner can file revision before the Central Government. He further submitted that the aforesaid recommendation cannot be construed to be an order attracting the provisions of Rule-54 of the M.C. Rules. According to him, the petitioner has taken a stand that it has cause of action against opposite par¬ties 1 and 2 to the extent that O.P.1 has taken a stand that the petitioner has no preferential right for consideration of its applications and there is no other alternative remedy available other than by way of writ petition. The further argument of Dr. The further argument of Dr. Singhvi is that existence of an alternative remedy is not a bar to file writ petitions in appropriate cases and when principles of natural justice are violated or jurisdictional issues arise or constitutionality of State action is challenged or issues regard¬ing fundamental rights are raised or vires of statutes are put to judicial scrutiny, the question of maintainability of writ peti¬tion cannot be raised as bar. 11.3 On the other hand, Mr. Pratap Chatterjee, learned Senior Counsel for O.P.3-POSCO, strongly objected to the aforesaid submission of learned counsel for the petitioner and submitted that as recommendation was made in favour of POSCO, the petitioner should have approached the revisional authority chal¬lenging such recommendation. 11.4 Mr. Mohan Parasaran and Mr. Farooq M. Razack, learned Addl. Solicitors General of India, referring to the decisions in the case of State of Goa and ors. Vs. A.H. Jaffar & Sons, AIR 1995 SC-333 and State of Goa and ors.Vs. A.H. Jaffar and Sons, AIR 2008 SC-1840, took the same stand, as has been taken by learned counsel for POSCO, and submitted that the writ petition should be dismissed in limine being not maintainable. Their further stand was that the petitioner should be allowed to agi¬tate 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 applica¬ble 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. 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 effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceed¬ings are wholly without jurisdiction or the vires of an Act is challenged. xxx xxx xxx” 11.7 Perusal of Section 30 and Rule 54 would show that revision lies against an order passed by the State Government in exercise of the powers conferred on it under the M.M. (D&R) Act and M.C. Rules. Such order must be communicated to the party concerned. 11.8 Petitioner’s grievance is that its applications have not been decided and that no orders have been passed on those applications. It is the admitted position that as on date the Petitioner’s applications have not been rejected. They could not have been rejected without following the procedure set out in Rule 12 in respect of prospecting licence applications and Rule 26 in respect of mining lease application. The said rules ex¬pressly provide for an opportunity of hearing (“after giving an opportunity of being heard”) before rejection. They also provide that the refusal to grant or rejection must be “for reasons to be recorded in writing and communicated to the applicant”. 11.9 That apart, as opposite party No.1 & 3 have stated that the recommendation made on 9.1.2009 seeks the Central Govern¬ment’s prior approval under Section 11(5) of the Act, the Central Government is bound to reject the recommendations as no “special reasons” could have been given following the hearing and its minutes as produced before this Court. The reasons recorded in the minutes are on the basis of inter-se merit consideration under Section 11(3) conditions. Opposite party No.1’s case is that POSCO was found best on Section 11(3) criteria. The reasons recorded in the minutes are on the basis of inter-se merit consideration under Section 11(3) conditions. Opposite party No.1’s case is that POSCO was found best on Section 11(3) criteria. Central Government having laid down guidelines must follow them unless held by Court of law to be inapplicable or ultra vires. 11.10 Apart from that, in the present case the Government seeks to exercise powers under Section 11(5). The provisions of Section 11(5) makes it very clear that no order can be made until the Central Government grants its approval. 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 “spe¬cial reasons” under Section 11(5) cannot be the same as indicted 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 Governments have been invoking the parameters given in Section 11(3) o 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 the MMDR Act. Moreover, `special reasons’ have to be exceptional by their very nature and not routine or obvious”. In our considered opinion, the writ petition is maintain¬able. This answers the issue no.1. 12. Issue no.2, Whether the writ petition is premature? This issue is answered in favour of the petitioner as the petitioner has approached this Court at a time when its right to be considered along with POSCO has been threatened to be infringed by the action of the State, which, according to the petitioner, is illegal and contrary to the statutory provision. So the petitioner prayed for preferential right under Article 226 of the Constitution of India. So the petitioner prayed for preferential right under Article 226 of the Constitution of India. Hence the writ petition cannot be said to be premature as the petitioner could not have waited till the harm is caused to him (See Bengal Immunity Co. Ltd., v. State of Bihar and others, AIR 1955 SC-661). 13. Issue No. 3 Whether the writ petition is maintainable due to delay and laches ? 13.1 According to learned counsel for POSCO, in the un-amended writ petition, the petitioner did not seek any declara¬tion as regards the validity of the notifications dated 5.6.1962, 6.12.1962 and the notification dated 23.8.1991 under which the petitioner had made the Mineral Concession applications. The prayer for declaring the above notifications as void and for quashing of the same were added to the writ petition by way of an amendment in June 2009 with an intent to overcome the embargo imposed by the judgment of this Court in Dagara’s case. He further submitted that the vested right to preferential consideration as claimed by the petitioner is no longer available to anyone under the M.M.(D&R) Act after its amendment on 18.12.1999. The petitioner has not challenged the said amend¬ment. So, long delay is manifest on the face of the records. It is also much beyond the period of limitation for filing a revi¬sion application as provided under Section 54 of the M.C. Rules, i.e. three months. His further contention was that such a long delay is a good ground for dismissal of the writ petition as the delay is unreasonable and much beyond the period of limitation prescribed by a civil action for the remedy. In this regard learned counsel for the POSCO placed reliance on the case of State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006 . In this regard learned counsel for the POSCO placed reliance on the case of State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006 . Learned counsel fur¬ther placed reliance on paragraph-21 of the judgment in the case of 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”. JUDGMENT B.P. DAS, J. : The petitioner, Geomin Minerals & Marketing (P) Ltd. which is a Company incorporated under the Indian Compa¬nies Act, 1956, has filed this writ petition, inter alia with the following prayers: “Order the opposite parties to dispose of all pending applications for Mineral Concessions filed by the petitioner and set out in the petition in accordance with its vested right to preferential consideration in view of the fact that the petition¬er’s applications have been filed on the first date of availabil¬ity and eligibility. Issue a writ of prohibition or any other appropriate writ, order or direction restraining the opposite parties from consid¬ering 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 given hereinbelow:- 2.1 On 29.10.1991, the petitioner-company filed several application 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 1st day of availability and eligibility in pursuance of a notification dated 23.8.1991 issued by the Govt. 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 1st day of availability and eligibility in pursuance of a notification dated 23.8.1991 issued by the Govt. of Orissa in the Department of Steel and Mines, (O.P.1), which was published in the Official Gazette on 13.9.1991, in terms of Rule 59(1) of the Mineral Concession Rules, 1960 (in short “M.C. Rules) whereby applications for grant of Prospecting Licence and Mining Lease in respect of various areas were invited and consequently mineral concessions were made available with effect from 29.10.1991. The notification is annexed as Annexure-1 to the writ petition and the various applications submitted by the petitioner for grant of Prospecting Licence and Mining Lease are annexed as Annexure-2 series. One of such applications is in respect of an area of 186 hects. in village Rantha in the dis¬trict of Sundergarh. 2.2 While the applications of the petitioner were pending for consideration of the State Government, M.C. Rules was amended in 2002 to include Rule 63-A, which required opposite party No.1 to dispose of the applications for Reconnaissance Permits, Pros¬pecting Licence and Mining Lease within 6,9 and 12 months respec¬tively. Opposite party No.1 failed to take any action in dispos¬ing of the applications of the petitioner which had been pending since 1991 despite upteem number of reminders to opposite party No.1 and while the applications of the petitioner were still pending, POSCO India Pvt. Ltd, (‘POSCO’ hereinafter) which was subsequently impleaded as opposite party No. 3 by virtue of our order dated 13.5.2009 on its application for impleadment, had filed various applications for mineral concessions in September 2005 over areas in the districts of Keonjhar and Sundergarh par¬tially or wholly overlapping with the areas for which various applications were filed by the petitioner. 2.3 The further case of the petitioner is that when POSCO filed is applications for Mineral Concession, the petitioner’s applications had been pending for approximately fourteen years. The petitioner and it’s group of companies were in the process of setting up an Integrated Steel Plant in the State of Orissa with a capacity of 12 million tonnes per annum. 2.3 The further case of the petitioner is that when POSCO filed is applications for Mineral Concession, the petitioner’s applications had been pending for approximately fourteen years. The petitioner and it’s group of companies were in the process of setting up an Integrated Steel Plant in the State of Orissa with a capacity of 12 million tonnes per annum. It is further stated that petitioner came to know that on or about 22.6.2005 opposite party No.1 had entered into a Memorandum of Understanding (MoU) with POSCO, whereby opposite party No.1 agreed to grant Prospect¬ing Licence and Captive Mining lease for 600 million tonnes of iron ore to POSCO after approval of Government of India. In the said MoU, as stated by the petitioner, it was agreed that oppo¬site 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 Licence 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 recommenda¬tion 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 of the date on which he had filed application for Mineral Concession which was much prior to the application filed by POSCO. The present petitioner, on coming to know of the said writ petition, filed an application for intervention on 19.2.2008. During hearing of the aforesaid writ petition, opposite party No.1-State filed an affidavit before this Court on 19.2.2008 indicating therein that all pending applications concerning the notifications referred to above, would be heard afresh, consider¬ing the preferential rights of the applicants, if any. During hearing of the aforesaid writ petition, opposite party No.1-State filed an affidavit before this Court on 19.2.2008 indicating therein that all pending applications concerning the notifications referred to above, would be heard afresh, consider¬ing the preferential rights of the applicants, if any. On 7.3.2008, the present petitioner received a notice from opposite party No.1 with regard to its application for Prospecting Li¬cence, being P.L. Application No. 1334, whereby the petitioner was directed to appear for a hearing on 10.4.2008. 3.2 According to the petitioner, it had earlier received a notice on 17.9.2007 for personal hearing pursuant to which it appeared before opposite party No.1 on 3.11.2007. Opposite party No.1, in fact acted upon the affidavit filed by it before this Court in W.P.(C) No. 15315 of 2007 and started re-hearing of the applications filed by the applicants. 4. Vide order dated 22.2.2008, this Court dismissed the application for intervention filed by the present petitioner by recording that the petitioner did not have any cause of action and the dismissal order would not prevent the intervenor from taking steps independently in respect of his grievance, if any. Thereafter the judgment in WP(C) No. 15315 of 2007 (Dagara’s case) was delivered and in paragraph-42 and 43 of which it has been held thus:- “42. So far as the petitioner’s grievance about return of his application for prospecting licence after the same was recom¬mended with the approval of the Chief Minister is concerned, this has been dealt with in paragraph-15 of the counter affidavit dated 8.1.2008 filed by the State. In paragraph-15, it has been specifically stated that the contention of the petitioner that the petitioner’s application for prospecting licence dated 29.10.1991 is without defect is not correct at all. The said application had several defects which are pointed out in para¬graph-15. It was also stated that the Government of India after scrutiny of the proposal returned the same for fresh examination along with other applications which were proposed to have been recommended but were rejected. Accordingly, 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 chal¬lenged by the petitioner. Thus the said action of the Government in 2001 cannot be collaterally challenged in this writ petition in 2007. Accordingly, 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 chal¬lenged 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 explana¬tion for the delay is not maintainable. In any event, the appro¬priate authority of the Government has not taken any final deci¬sion after the matter has been remanded by the revisional author¬ity 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 inter¬ference 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 petition and all the contentions of the writ petitioner fail. The writ petition is dismissed. There would be no order as to costs.” 5. The petitioner’s further case is that the judgment of this Court in the Dagara’s case did not deal with the matter in controversy in the present case, i.e. consideration of the appli¬cations as the first day applications and their priority over the later applications. As the petitioner’s applications were not considered, the petitioner filed W.P.(C) No. 6484 of 2008 on the allegation that the opposite parties failed to consider the applications of the petitioner within the time specified in Rule-63-A of the M.C. Rules. On 14.7.2008 this Court disposed of the aforesaid writ petition directing the opposite parties to dispose of the applications of the petitioner within six months, without any discrimination and in accordance with law. The relevant portion of the judgment is quoted hereinbelow. On 14.7.2008 this Court disposed of the aforesaid writ petition directing the opposite parties to dispose of the applications of the petitioner within six months, without any discrimination and in accordance with law. The relevant portion of the judgment is quoted hereinbelow. “xxx xxx we dispose of this writ petition with a direction to the State of Orissa in the Department of Steel and Mines to consider the pending P.L./R.P. application of the petitioner for the area excepting the area which is subject matter of the writ petition before the Hon’ble Delhi High Court and for which the intervener is the applicant as expeditiously as possible, prefer¬ably within a period of six months from the date of production of a copy of this order without any discrimination and in accordance with law.” 5.1 Thereafter the petitioner approached this Court in W.P.(C) No. 15424 of 2008 with a prayer to direct the opposite parties to dispose of all pending application for Mineral Conces¬sion filed by it in accordance with its vested right of preferen¬tial consideration in view of the fact that the petitioner’s applications had been filed on the first date of availability and eligibility. This Court disposed of the said writ petition on 12.11.2008 with the following orders:- “This writ petition has been filed for seeking a direction to the opposite parties that they should consider and dispose of the application for mineral concession filed by the petitioner in accordance with law. Heard Mr. Ranjit Kumar, learned counsel for the petitioner and Mr. S.K. Nayak, learned Senior Counsel for the opposite parties. Mr. Nayak, learned Senior Counsel assured us that the appli¬cation of the petitioner 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 re¬quest 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 exten¬sion 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. 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 invo¬cation of Section 11(5) of the M.M.(D&R) Act to unique cases, as set out in the earlier petition, the petitioner filed the present writ petition on the ground that it is entitled to get the pref¬erential right for obtaining a prospecting license and the oppo¬site parties have not acted in terms of section 11(5) of the M.M.(D&R) Act and there has been discrimination in the action of the State Government as because in many cases the State Govern¬ment has processed the application of the year 1991 in the years 2000, 2001, 2002, 2003, 2004 and 2005 by applying preferential right based on first day applicant status, which it has not done in the case of the petitioner. The opposite parties have favoured some other entities ignoring the application filed by he peti¬tioner as well as the vested preferential right accrued in favour of the petitioner. Petitioner further submits that in Dagara’s case opposite party No.1-State did not disclose before this Court that the State had granted at least 21 mineral concessions from 2000 to 2005, even after amendment of Section 11 in December 1999, based on preferential right to applicants and applications filed pursuant to same notification dated 23.8.1991. All these grants were with the approval of opposite party No.2. Therefore both opposite party Nos. 1 and 2 were well aware that after amendment also preferential right, at least to consider, was very much existing as per Section 11 and they had acted accordingly and change in their stand was only to favour POSCO. 6. The State Government, in its counter affidavit filed through the Commissioner-cum-Secretary to the Government of Orissa, Department of Steel & Mines, took the following stand. 6. The State Government, in its counter affidavit filed through the Commissioner-cum-Secretary to the Government of Orissa, Department of Steel & Mines, took the following stand. 6.1 The present writ petition is pre-mature on the ground that previously the petitioner had filed two writ petitions, the last one being W.P.(C) 1524 of 2008, which was disposed of on 12.11.2008 at the stage of admission and while disposing of the said writ petition, this Court directed the State Government to consider the applications of the petitioner for mineral conces¬sions by passing a speaking order within a period of three months from the ate of the order, i.e. 12.11.2008. Despite best effort, since the petitioner’s applications could not be disposed of within the time stipulated by the Hon’ble Court, a petition was filed to extend the time by ten months’ and this Court by its order dated 30.3.2009 granted another three 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 filed 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 would 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 amend¬ment, is totally misconceived. The applicability of Section-11 of the Act, as it stood before amend¬ment, is totally misconceived. Further it relied upon the judg¬ment passed by this Court on 2.5.2008 in W.P.(C) No. 15315 of 2007 (Dagara’s case) wherein it was held that the applicants for prospecting licence or mining lease could not claim that their applications were to be disposed of first on the basis of their claim of preferential right under the provision of Section 11(2) of the Act after amendment. 6.3 Apart from that, certain legal questions were raised in the counter affidavit, which were also raised by the learned counsel for the State during the course of hearing and the same shall be dealt with in this judgment. 6.4 It is also indicated in the counter affidavit that mere filing of an application for mineral concession does not confer any accrued right on the applicant unless the application is decided for grant in its favour in accordance with the provisions of the Act and the Rules. Hence, the allegation of violation of the petitioner’s fundamental right guaranted under Articles 14, 19 and 21 of the Constitution of India is a misnomer. 6.5 The further stand taken by the State in its counter affidavit is that the State Government has adopted a broad strategy to encourage value addition and end use of mineral inside the State. Due to enhancement of steel prices in the international market and demand of steel in recent past, a number of promoters were attracted to set up Steel Plants in the State due to its abundant reserve of iron ore. Regarding grant of prospecting licence over an area of 9.566 hectares in respect of the petitioner’s application dated 29.10.1991, it is indicated that all the applications filed for the area on the date of its availability were considered simultaneously and the P.L. was granted in favour of the most meritorious applicants after deter¬mination of their merits under provision of Sections 11(2) and (3) of the M.M. (D&R) Act and the M.C. Rules. The State Govern¬ment has received a good number of M.C. applications over the Khandadhar area which was notified on 23.8.1991. So far, 49 companies have signed MoU with the State Government to set up steel plants in the State, out of which, 28 have begun partial production. The State Govern¬ment has received a good number of M.C. applications over the Khandadhar area which was notified on 23.8.1991. So far, 49 companies have signed MoU with the State Government to set up steel plants in the State, out of which, 28 have begun partial production. As per the MoU, the promoter company will be consid¬ered for allocation of Mining Lease for iron ore after achieve¬ment of specified criteria/milestone. Therefore, the State Gov¬ernment has considered all the applications for the area simulta¬neously 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 applica¬tions 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 & Power (P) Ltd., it is indicated that the area applied for by the petitioner for P.L./M.L. is different from that of M/s. Action Ispat & Power (P) Ltd., though the area applied for by both are covered under the 1991 notification. 6.8 The sum and substance of the stand taken in the counter affidavit filed by the State is that the amendment made in 1999 to the M.M. (D&R) Act, 1957 clearly provides for a separate method of consideration of applications in respect of an area notified in the official gazette. As per the amended Act, the sole consideration for disposal of applications for the notified area is merit, as enumerated in sub-section (3) of Section-11. As per the amended Act, the sole consideration for disposal of applications for the notified area is merit, as enumerated in sub-section (3) of Section-11. Any attempt to dislodge the meritorious credentials of an appli¬cant in respect of an area notified in the official gazette is contrary to the meaning of plain reading of the Section-11 and negation of merit and preferential treatment of applicants based on chronological order would be detrimental to the mining indus¬try and lead to unscientific mining and wastage of scarce mineral resources. Preferential right, as used in Section-11, is neither a vested right nor a substantive right as it is not an absolute right enforceable in law. At best, the use of the term “preferen¬tial right” can only be resulted as an expectation of an earlier applicant that his application will be considered in preference to a later applicant. The State Government being otherwise empow¬ered under the statute can act in a manner contrary to the expec¬tations of an earlier applicant provided that special reasons are to be recorded subject to the test of reasonableness. The allega¬tions of the petitioner are unfounded and without any basis of law. The allegation of the petitioner that the State acknowledged the existence of prior applicants only because POSCO’s recommen¬dation was made under Section 11(5) of the Act is wrong and baseless. Though the earlier recommendation in favour of POSCO was made under Section 11(5) of the Act, it had taken into con¬sideration the other applications to determine the relative merits on the yardstick of Section 11(3) of the Act and in Daga¬ra’s case this Court has clarified that the preferential right in respect of the notified area, if any, does not survive after the 1999 amendment, for which the claim of the preferential right of the petitioner in this writ petition is not sustainable. 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 filed 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 Recon¬naissance 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 the Mineral Concession. Thereafter in the counter affidavit, the Union of India ultimately explains the different procedures of M.M.(D&R) Act and further contended that Iron Ore is the First Schedule mineral. The proposal under Section-11 of the Act falls under two categories, i.e. notified and non-notified. In case of notified area, applications are invited by the State Govern¬ment through gazette notification and all these applications received in pursuance of the said notification during the period specified in such notification are examined in terms of the provision of 11(3) of the M.M.(D&R) Act and the State Government grants the Mining Lease/Prospecting Licence/Reconnaissance Permit to such one of the applicants, as it may deem fit. In case of non-notified area, the underlying principle is “first come first serve”. However the area can be considered in favour of a later applicant in terms of Section 11(5) of the Act provided the same is supplemented with ‘special reasons’ for grant of the area in favour of such applicant. It is also indicated in the counter affidavit that the petitioner is confusing the principles of “preferential right” and “first come first serve” by citing Hoda Committee Recommendation, which is totally out of place and in a wrong context. 8. During the pendency of the writ petition, M/s. POSCO India Pvt. Ltd. filed Misc. Case No. 5480 of 2009 praying inter alia to be impleaded as a party to this proceeding. The prayer for intervention was allowed and subsequently POSCO filed its counter affidavit. 8. During the pendency of the writ petition, M/s. POSCO India Pvt. Ltd. filed Misc. Case No. 5480 of 2009 praying inter alia to be impleaded as a party to this proceeding. The prayer for intervention was allowed and subsequently POSCO filed its counter affidavit. In the counter affidavit filed by POSCO through its Director (Mining Division), it is indicated that POSCO, Korea has entered into a Memorandum of Understanding (MoU) dated 22.6.2005 with the Government of Orissa for setting up an integrated steel plant for a total production capacity of 12 million tonnes per annum at Paradeep in Jagatsinghpur District. Through this MoU, POSCO has proposed an investment of about US$ 12 billion or approximately Rs.54,000 crores for the said plant for carrying value additions in the State for a 100% export project. It is further stated that this investment is the largest ever Foreign Direct Investment in India. The MoU which spells out requirement of iron ore mines for captive use at the plant, POSCO applied on 27.9.2005 for grant of Prospecting Licence for Khan¬dadhar Block in Sundergarh 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 application have been filed for grant of Prospecting Licence and Mining Lease over the said area and the State Govern¬ment 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. The Revisional Application of the KIOCL was disposed of on 27.9.2007. Thereafter the State Government acting in compliance with the directions of the Revisional Authority issued notices under Rules 12 and 26 of the M.C. Rules to the applicants requiring them to furnish defi¬cient/additional information and to appear for personal hearing. During the course of hearing of those applications before the State Government, a writ petition was filed by one Dhananjaya Kumar Dagara (supra) challenging the order dated 27.9.2007 passed by the Revisional Tribunal. In the said writ petition, the State of Orissa, the Union of India and the Director of Mines (Govern¬ment of Orissa), POSCO and KIOCL were the opposite parties. The petitioner therein claimed the preferential right under Section 11 of the M.M.(D&R) Act and in alternative claimed that its application having been filed on 29.10.1991, ought to be disposed of in accordance with the law in force at that time by according preferential rights of a first applicant. This Court disposed of the writ petition filed by Dhananjaya Kumar Dagara (supra) vide judgment dated 2.5.2008 with the observation as indicated in the foregoing paragraph. 8.1 With regard to the survival of preferential right under the pre-amended provision of Section 11(2) of the M.M.(D&R) Act after its amendment in 1999, it was submitted that the same is no more res integra after the judgment in Dagara’s case. After such decision, the State Government considering all the applications basing on personal hearing and determination of inter-se merits and decided to recommend the POSCO’s application for grant of Prospecting Licence over a contiguous area of 2500 hectares (comprising of 2085 hectares of notified area and 415 hectares of non-notified available area) to the Central Government for ap¬proval under Section 11(5) of the M.M.(D&R) Act. The recommenda¬tion made vide communication dated 9.1.2009 sets out the special reason for which POSCO has been preferred over other applicants for the area. The special reasons cited in favour of such recom¬mendation include the details of the investment proposed by POSCO, ability to carry out scientific exploration and mining, financial capability, eco-friendly, resource efficient technolo¬gy, potential to generate high order revenue and employment opportunities in the State. The special reasons cited in favour of such recom¬mendation include the details of the investment proposed by POSCO, ability to carry out scientific exploration and mining, financial capability, eco-friendly, resource efficient technolo¬gy, potential to generate high order revenue and employment opportunities in the State. The communication dated 9.1.2009 also indicates that before recommending the application of POSCO, the State Government 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 o the MC Rules deserve simulta¬neous consideration and that no applicant can have any preferen¬tial 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 preferen¬tial right of the first applicant does not survive after 1999 amendment. 8.4 It is further submitted that if at all the petitioner in any manner is aggrieved by the action of the State Government in recommending the case of POSCO under Section 11(5) of the M.M.(D&R) Act, it can seek a revision of the order passed by the State Government before the Revisional Authority of the Central Government. 9. Though M/s VISA Steel Ltd. has filed an application for intervention, the same has not yet been considered. But we have heard the learned counsel for the intervener. 10. In the aforesaid factual background and rival contentions made in the writ petition as well as counter affida¬vits, the following issues emerge for consideration. 1. Whether the writ petition is maintainable due to avail¬ability of alternative remedy? 2. Whether the writ petition is premature? 3. Whether the writ petition is maintainable due to delay and laches? 4. 10. In the aforesaid factual background and rival contentions made in the writ petition as well as counter affida¬vits, the following issues emerge for consideration. 1. Whether the writ petition is maintainable due to avail¬ability of alternative remedy? 2. Whether the writ petition is premature? 3. Whether the writ petition is maintainable due to delay and laches? 4. Whether the writ petition is barred by res-judicata? 5. Whether the area in question was earlier reserved or it is a non-reserved area? 6. Whether the petitioner has any preferential right under Section-11 of the M.M.(D&R) Act? 7. Whether recommendation made by the State Government under Section 11(5) of the M.M.(D&R) Act in favour of POSCO is valid? The question of res-judicata shall be considered while dealing with other issues as it is intrinsically related to other issues. Some other miscellaneous issues raised in this case shall also be considered herein below. 11. Issue no.1 Whether the writ petition is maintainable due to availabili¬ty of alternative remedy? 11.1 Admittedly, under Section 30 of the M.M.(D&R) Act, 1957 read with Rule 54 of M.C. Rules, 1960, revision lies to the Central Government. Section 30 empowers the Central Government to revise any order made by the State Government or other authority of its own motion or on application made within the prescribed time by an aggrieved party, whereas Rule 54 of the M.C. Rules provides that “any person aggrieved by any order made by the State Government or other authority in exercise of the powers conferred on it by the Act or these Rules may, within three months of the date of communication of the order to him, apply to the Central Government in triplicate in Form-N, for revision of the order”. 11.2 To the question raised by the opposite parties regard¬ing maintainability of the writ petition, Dr. 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 reme¬dy. 11.2 To the question raised by the opposite parties regard¬ing maintainability of the writ petition, Dr. 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 reme¬dy. 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 application filed by differ¬ent 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 it can be said to be an application by the State Government to the Central Government in order to seek the Central Government’s prior ap¬proval under Section 11(5) of the M.M.(D&R) Act to enable the State Government to pass an order in favour of O.P.3 overriding the preferential right of the earlier applicant, such as the petitioner, because the prior approval is a necessary pre-condition to the passing of any order under Section 11(5) of the Act it is only after approval of Central Govt. under Section 11(5) if any order is passed and communicated rejecting petition¬er’s application for prospecting licence, the petitioner can file revision before the Central Government. He further submitted that the aforesaid recommendation cannot be construed to be an order attracting the provisions of Rule-54 of the M.C. Rules. According to him, the petitioner has taken a stand that it has cause of action against opposite par¬ties 1 and 2 to the extent that O.P.1 has taken a stand that the petitioner has no preferential right for consideration of its applications and there is no other alternative remedy available other than by way of writ petition. The further argument of Dr. The further argument of Dr. Singhvi is that existence of an alternative remedy is not a bar to file writ petitions in appropriate cases and when principles of natural justice are violated or jurisdictional issues arise or constitutionality of State action is challenged or issues regard¬ing fundamental rights are raised or vires of statutes are put to judicial scrutiny, the question of maintainability of writ peti¬tion cannot be raised as bar. 11.3 On the other hand, Mr. Pratap Chatterjee, learned Senior Counsel for O.P.3-POSCO, strongly objected to the aforesaid submission of learned counsel for the petitioner and submitted that as recommendation was made in favour of POSCO, the petitioner should have approached the revisional authority chal¬lenging such recommendation. 11.4 Mr. Mohan Parasaran and Mr. Farooq M. Razack, learned Addl. Solicitors General of India, referring to the decisions in the case of State of Goa and ors. Vs. A.H. Jaffar & Sons, AIR 1995 SC-333 and State of Goa and ors.Vs. A.H. Jaffar and Sons, AIR 2008 SC-1840, took the same stand, as has been taken by learned counsel for POSCO, and submitted that the writ petition should be dismissed in limine being not maintainable. Their further stand was that the petitioner should be allowed to agi¬tate 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 applica¬ble 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. 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 effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceed¬ings are wholly without jurisdiction or the vires of an Act is challenged. xxx xxx xxx” 11.7 Perusal of Section 30 and Rule 54 would show that revision lies against an order passed by the State Government in exercise of the powers conferred on it under the M.M. (D&R) Act and M.C. Rules. Such order must be communicated to the party concerned. 11.8 Petitioner’s grievance is that its applications have not been decided and that no orders have been passed on those applications. It is the admitted position that as on date the Petitioner’s applications have not been rejected. They could not have been rejected without following the procedure set out in Rule 12 in respect of prospecting licence applications and Rule 26 in respect of mining lease application. The said rules ex¬pressly provide for an opportunity of hearing (“after giving an opportunity of being heard”) before rejection. They also provide that the refusal to grant or rejection must be “for reasons to be recorded in writing and communicated to the applicant”. 11.9 That apart, as opposite party No.1 & 3 have stated that the recommendation made on 9.1.2009 seeks the Central Govern¬ment’s prior approval under Section 11(5) of the Act, the Central Government is bound to reject the recommendations as no “special reasons” could have been given following the hearing and its minutes as produced before this Court. The reasons recorded in the minutes are on the basis of inter-se merit consideration under Section 11(3) conditions. Opposite party No.1’s case is that POSCO was found best on Section 11(3) criteria. The reasons recorded in the minutes are on the basis of inter-se merit consideration under Section 11(3) conditions. Opposite party No.1’s case is that POSCO was found best on Section 11(3) criteria. Central Government having laid down guidelines must follow them unless held by Court of law to be inapplicable or ultra vires. 11.10 Apart from that, in the present case the Government seeks to exercise powers under Section 11(5). The provisions of Section 11(5) makes it very clear that no order can be made until the Central Government grants its approval. 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 “spe¬cial reasons” under Section 11(5) cannot be the same as indicted 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 Governments have been invoking the parameters given in Section 11(3) o 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 the MMDR Act. Moreover, `special reasons’ have to be exceptional by their very nature and not routine or obvious”. In our considered opinion, the writ petition is maintain¬able. This answers the issue no.1. 12. Issue no.2, Whether the writ petition is premature? This issue is answered in favour of the petitioner as the petitioner has approached this Court at a time when its right to be considered along with POSCO has been threatened to be infringed by the action of the State, which, according to the petitioner, is illegal and contrary to the statutory provision. So the petitioner prayed for preferential right under Article 226 of the Constitution of India. So the petitioner prayed for preferential right under Article 226 of the Constitution of India. Hence the writ petition cannot be said to be premature as the petitioner could not have waited till the harm is caused to him (See Bengal Immunity Co. Ltd., v. State of Bihar and others, AIR 1955 SC-661). 13. Issue No. 3 Whether the writ petition is maintainable due to delay and laches ? 13.1 According to learned counsel for POSCO, in the un-amended writ petition, the petitioner did not seek any declara¬tion as regards the validity of the notifications dated 5.6.1962, 6.12.1962 and the notification dated 23.8.1991 under which the petitioner had made the Mineral Concession applications. The prayer for declaring the above notifications as void and for quashing of the same were added to the writ petition by way of an amendment in June 2009 with an intent to overcome the embargo imposed by the judgment of this Court in Dagara’s case. He further submitted that the vested right to preferential consideration as claimed by the petitioner is no longer available to anyone under the M.M.(D&R) Act after its amendment on 18.12.1999. The petitioner has not challenged the said amend¬ment. So, long delay is manifest on the face of the records. It is also much beyond the period of limitation for filing a revi¬sion application as provided under Section 54 of the M.C. Rules, i.e. three months. His further contention was that such a long delay is a good ground for dismissal of the writ petition as the delay is unreasonable and much beyond the period of limitation prescribed by a civil action for the remedy. In this regard learned counsel for the POSCO placed reliance on the case of State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006 . In this regard learned counsel for the POSCO placed reliance on the case of State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006 . Learned counsel fur¬ther placed reliance on paragraph-21 of the judgment in the case of 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”.