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2011 DIGILAW 446 (JHR)

Bimaldeep Steel Pvt. Ltd. v. Union of India

2011-05-18

R.K.MERATHIA

body2011
Order Heard the parties finally at length. 2. This writ petition has been filed for quashing the order dated 28.10.2010, passed in Revision Application File No. 06/10/2008-RC.1 by the Revisional Authority, rejecting the revision filed by the petitioner against the order of the State Government dated 11.2.2008, recommending the application filed by respondent no.7 (R-7) for grant of mining lease for Iron Ore and Manganese Ore over the area in question. Petitioner has also prayed for setting aside the recommendation and the prior approval granted by the Central Government dated 5.6.2008 for grant of the said mining lease in favour of R-7, A further prayer has been made for setting aside the recommendation made by the State Government and for a direction to it to reconsider all the applications made by the parties for the said mining lease without being influenced by the orders passed in other writ petition, and by giving preference to the Industries already established within the State of Jharkhand. 3. Mr. Indrajit Sinha, learned counsel appearing for the petitioner, submitted as follows: The remark-late applicant' made in the comparative chart with regard to petitioner has prejudiced it's case. Recommending the application of R-7 amounts to rejecting the application of the petitioner, and therefore in terms of Rule 26 of the Mineral Concession Rules, 1960 (MC Rule for short), it was necessary for the State Government to communicate the reasons to the petitioner, which has not been done. In paragraph 8.18 of the Circular of the Ministry of Mines, Government of India dated 24.6.2009 it is provided that as revision lies against the recommendation of the State Government, it should inform all the unsuccessful applicants about the reasons recommending the case of other applicant. The Revisional Authority did not assign reasons while rejecting the revision. The judgment of Brahmi Impex Limited-2009(4) JCR 130 (Jhr.) [ : 2009(4) JLJR 189 ), will not operate as res judicata for the petitioner. The recommendation in favour of R-7 on the basis of MOU i.e. a past commitment is bad. Therefore, the reliefs prayed be granted. 4. On the other hand, Mr. Khan, appearing for respondent nos. 1, 2 and 3, learned Advocate General, appearing for respondent' nos. 4, 5 and 6 and Mr. K. Venugopal, appearing for respondent no. 7 supported the impugned order/recommendations made in favour of R-7. Therefore, the reliefs prayed be granted. 4. On the other hand, Mr. Khan, appearing for respondent nos. 1, 2 and 3, learned Advocate General, appearing for respondent' nos. 4, 5 and 6 and Mr. K. Venugopal, appearing for respondent no. 7 supported the impugned order/recommendations made in favour of R-7. It was submitted that the recommendation in favour of R- 7 is strictly in terms of Section 11 (3) of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act). It was made after giving opportunity of hearing to the parties. The remark-'late applicant' in the case of petitioner in the comparative chart did not prejudice the petitioner, rather petitioner was given opportunity of hearing on merits of its application by the State Government. The Revisional Authority has assigned reasons. In view of the judgment of Brahmi Impex (supra), affirmed by the Division Bench, petitioner cannot be allowed to challenge the decision making process in question. It was also submitted that this is the stage of recommendation and not the stage of grant of mining lease, which depends of other contingencies. Therefore, the writ petition be dismissed. 5. From the records, the following position emerges. The State Government issued a notification dated 2.4.2007 under Rule 59 of the MC Rules inviting applications for grant of Mining Lease for Iron Ore and Manganese Ore in Meghataburu Taluka, Karampada Reserve Forest, District-West Singhbhum, Jharkhand over an area of 500 acres. R- 7 applied within time stipulated, whereas there was delay of one day by the petitioner. However, condoning such delay, all the applicants including the petitioner were called for hearing by the State Government on 17.12.2007 and then on 18.1.2008. After hearing them and considering their comparative merits, the State Government prepared a comparative chart and recommended the application of R-7 on 11.2.2008 to Central Government for its approval for grant of mining lease. The Central Government sought certain clarifications. Accordingly, the State Government re-evaluated the merits of the applicants and forwarded another comparative chart dated 22.5.2008, again recommending the application of R-7 to the Central Government for approval. On the basis of second recommendation, the Central Government accorded approval to the application of R-7 on 5.6.2008. 6. Petitioner filed a revision petition on 8.11.2008 challenging only the first recommendation made by the State Government on 11.2.2008. Columns 9 and 12 of Revision Application reads as follows:- "9. On the basis of second recommendation, the Central Government accorded approval to the application of R-7 on 5.6.2008. 6. Petitioner filed a revision petition on 8.11.2008 challenging only the first recommendation made by the State Government on 11.2.2008. Columns 9 and 12 of Revision Application reads as follows:- "9. If not, the reasons for not presenting it within the prescribed limit as provided for in proviso to sub-rule (1) of Rule 54 of Mineral Concession Rules, 1960. THE ORDER HAS NOT BEEN COMMUNICATED TO US TILL DATE. WE HAVE ARRANGED A COPY OF THE LETTER FOR RECOMMENDATION OF MINES TO OTHER PARTY AND NOW FILING THE REVISION APPLICATION ACCORDINGLY" "12. Ground& of revision. HERE THE REVISION APPLICANT WOULD LIKE TO BRING IT TO THE NOTICE OF THE HON'BLE MINISTRY OF MINES (GOVT. OF INDIA). THAT WE ARE NOT BEING ALLOTTED MINES EVEN AFTER ESTABLISHMENT OF PLANT AND MAKING HUGE INVESTMENT OF APPROXIMATEL Y 60 CRORES IN THE STATE. WHEREAS PARTIES WHO HAVE LONG BACK SIGNED MOU WITH THE STATE GOVT. BUT ARE YET TO LAND ON THE INDUSTRIAL BASE OF JHARKHAND HAVE BEEN ALLOTTED MINES. IRON ORE IS THE CHIEF RAW MATERIAL IN IRON & STEEL MFG. SURVIVAL OF THE INDUSTRY IS IN DANGER BECAUSE OF NONAVAILABILITY OF PROPER QUALITY AND QUANTITY OF RAW MATERIAL"." 7. The Revisional Authority after hearing the parties and considering their respective cases rejected the revision on 28.10.2008. It held that the respondent-State Government had evaluated the applications under Section 11 (3) of MMDR Act and the Central Government has also accorded prior approval. It appears from the revisional order that the revisional authority applied its mind to the respective cases of the parties. In my opinion, the contention of the petitioner that the revisional authority has not assigned reasons is not acceptable. 8. It is also clear that the delay of one day in filing the application by the petitioner was not at all a ground for rejecting it's application. Rather it appears that such delay was ignored and the petitioner was heard on merits of its application by the State Government, Central Government and the Revisional Authority. Thus, it is absolutely incorrect that the remark-'late applicant' weighed for rejecting the petitioner's application. 9. According to the petitioner, the recommendation made in favour of R-7 amounts to rejection of petitioner's application and therefore the reasons thereof must have been communicated to it. 10. Thus, it is absolutely incorrect that the remark-'late applicant' weighed for rejecting the petitioner's application. 9. According to the petitioner, the recommendation made in favour of R-7 amounts to rejection of petitioner's application and therefore the reasons thereof must have been communicated to it. 10. Rule 26 of the MC Rules provides for communicating the reasons of refusal to grant mining lease. In the present case, that stage has not come. The stage is of recommendation for grant in favour of R-7. Learned counsel for R-7 argued that a number of contingency may arise which may prevent grant •of mining lease in favour of R-7. The Central Government may refuse to grant it to R-7 if another applicant is found better placed or if it is found that the requirement of the Act & Rules have not been complied with. Then the grant in favour of R-7 is subject to various permission and statutory approvals under Forest Conservation Act, Environment Protection Act. R- 7 may even wish not to proceed with its application etc. etc. 11. The circular of the Central Government dated 24.6.2009 relied by the petitioner only contemplates that as a revision can be filed against recommendation of the State. Government, the unsuccessful applicants should be informed about the reasons why the other applicant has been recommended. The said Circular is of no help to the petitioner. Firstly, it appears that the petitioner had knowledge of the reasons. Secondly, the petitioner was given opportunity of hearing by the State Government, the Central Government and the Revisional Authority. Moreover, the said Circular was issued on 24.6.2009 i.e. much after the recommendation was made by the State Government on 11.2.2008. Thus, petitioner has suffered no prejudice at all. 12. The comparison is to be made strictly in terms of Section 11(3) of MMDR Act, which reads as follows:- "11 (3) The matters referred to in sub-section (2) are the following: (a) any special knowledge of, or experience in, reconnaissance operations, prospecting operations or mining operations, as the case may be, possessed by the applicant; . (b) the financial resources of the applicant; (c) the nature and quality of the technical staff employed or to be employed by the applicant; (d) the investment which the applicant proposes to make in the mines and in the industry based on the minerals; (e) such other matters as may be prescribed." 13. (b) the financial resources of the applicant; (c) the nature and quality of the technical staff employed or to be employed by the applicant; (d) the investment which the applicant proposes to make in the mines and in the industry based on the minerals; (e) such other matters as may be prescribed." 13. From the comparative chart, it is apparent that R-7 is much more meritorious than the petitioner in technology, investment, experience etc. The MOU with R-7 is one of the criteria and not the only criteria. Petitioner could not show how it is meritorious than R-7 in the said matters. The case of the petitioner is that it has already established an Industry in Jharkhand after making huge investment and therefore it should have been pre• ferred than R- 7 who still proposes to make investment. Such contention cannot be accepted. The judgment of Sandur Manganese and Iron Ores Ltd., (2010) 13 see 1, relied by both the parties does not help the petitioner, rather it supports the contention of R-7. The relevant portion reads as follows:- "76......Section 11(3)(d) specifies "the investment which the applicant proposes to make in the mines and in the industry based on the minerals" as one of such matters and on a plain interpretation, it is clear that only the pro• posed investment is a relevant factor. If the Legislature had intended that it should include past investments also, the use of the word "proposed" is superfluous, which could never be the case......." "80...As rightly pointed out, the State Government has no authority under the MMDR Act to make commitments to any person that it will, in future, grant a mining lease, in the event that the person makes investment in any project. Assuming that the State Government had made any such commitment, it could not be possible for it to take an inconsistent position and proceed to notify a particular area. Further, having notified the area, the State Government certainly could not thereafter honour an alleged commitment by ousting other applicants even if they are more deserving on the merit criteria as provided in Section 11 (3)." "82 From a perusal of the above settled legal position, it becomes clear that the State Government cannot grant mining lease keeping in mind any considerations apart from the ones mentioned in the MMDR Act and the MC Rules. In these circumstances, no extraneous considerations such as past commitments made by the State Government to Jindal and Kalyani who have already set up steel plants can be entertained by the State Government while granting mining leases and must abide by the Act and the Rules." 14. Further more petitioner's case is squarely covered by the case of Brahmi Impex (supra), which was dismissed. Petitioner's contention that it's case is not covered by that case is vexatious. The same decision making process in which recommendation has been made in favour of R-7 was under challenge in that case inter alia on the ground that pendency of litigation weighed for not considering the merits, whereas in the present case, according to the petitioner, filing late application, weighed for not considering the case of petitioner. In both the cases, the stand of the Respondent-State was/is that when Central Government sought certain clarifications, the applications were reevaluated. In other words, the mistake if any, was corrected. In both the cases, it was/is claimed that there has been violation of principles of natural justice, by not assigning the reasons, for the decision. It was inter alia held in that case that the credentials of Brahmi Impex was considered. Similar is the position in this case as the credentials of petitioner were considered, as noticed above. [Paragraphs 10, 11, 17, 19, 20, 21 and 22 of Brahmi Impex (supra) may be seen]. Thus, it is clear that the present case is squarely covered by the judgment of Brahmi Impex (supra), which was affirmed also on 22.5.2010, by the Division Bench in LPA No. 369 of 2009. 15. Before parting, I am constrained to observe that though the said judgment and order of Brahmi Impex (supra) squarely covered the case of petitioner, this writ petition was filed on 22.11.2010. It is further disturbing that it was filed through the same counsel. Either the petitioner was ill-advised or it has tried to abuse the process of law. In the present scenario, when thousands of less fortunate people are waiting for their turn in Courts, such litigation is deprecated. 16. In the result, this writ petition is dismissed with a token cost of Rs.25,000/-(Twenty five thousand only) to be deposited by the petitioner with the Senior Citizen Home, Bariatu Road, Ranchi, within four weeks.