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2020 DIGILAW 222 (MP)

Pacific Exports (M/s. ), Katni v. Union of India

2020-02-11

AJAY KUMAR MITTAL, VIJAY KUMAR SHUKLA

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ORDER Shukla, J.-- 1. In the instant petition invoking the writ jurisdiction under Article 226 of the Constitution of India, challenge has been made to the orders dated 26.1.2007, 2.1.2008 and 2.1.2017 passed by the respondents No.1 and 2 (Annexure-P/2, Annexure-P/3, Annexure-P/11 and Annexure-P/12) for issuance of directions to the respondents in the nature of mandamus to grant Prospecting Licence in favour of the petitioner for the area admeasuring 35.20 Hectare comprising of Khasra Nos.668/1 and 668/5 situated in the Village, Ghugharikala, Tahsil Sihora, District Jabalpur. 2. The petitioner’s case in a nutshell is that the petitioner is a firm engaged in the business of mining and minerals. It is stated that the respondents No. 5 and 6 had applied for grant of mining lease over Khasra No. 668/1 (old Khasra No. 407/1) admeasuring 59.868 hectare which was considered by the respondent No. 2 and it was decided to grant mining lease in respect of the area admeasuring 30.756 hectare in favour of the respondent No. 5 and area admeasuring 23.491 hectare in favour of the respondent No. 6. The State Government thereafter sought approval from the Central Government by virtue of section 5(1) of the Mines and Minerals (Development and Regulation) Act, 1957 [hereafter referred to as “the Act”]. The Central Government conveyed its approval for grant of mining lease, vide order dated 26.10.2007 and 2.1.2008, however, the issue of grant of mining lease in favour of the respondents No. 5 and 6 was not processed further. 3. It is argued that the petitioner was granted Reconnaissance Permit in respect of major minerals viz. Titanium, Arsenic, Antimony, Bismuth, Cobalt, Molybdenum, Gold, Silver, Pyrite, Platinum, Pallidum and other associated minerals over an area of 1080 Sq. Kms. in Katni and Jabalpur districts, for a period of three years after obtaining due approval from the Central Government. The area included Khasra Nos. 668/1 and 668/5 of Village, Ghughari, Tehsil Sihora, District Jabalpur. Claiming its preferential right to get Prospecting Licence, the petitioner submitted an application in the light of the provisions envisaged under the Act and the Mineral Concession Rules, 1960 [for brevity “the Rules”] over an Area admeasuring 35.20 hectares comprising Khasra Nos. 668/1 and 668/5 before the respondent No.1. 668/1 and 668/5 of Village, Ghughari, Tehsil Sihora, District Jabalpur. Claiming its preferential right to get Prospecting Licence, the petitioner submitted an application in the light of the provisions envisaged under the Act and the Mineral Concession Rules, 1960 [for brevity “the Rules”] over an Area admeasuring 35.20 hectares comprising Khasra Nos. 668/1 and 668/5 before the respondent No.1. As the application was not considered the petitioner preferred Writ Petition No.9872/2014 seeking a direction to the respondents to consider and decide his application, which was disposed of by this Court directing the respondents to consider the application of the petitioner. The respondents, thereafter considered the application and rejected the same vide order dated 25.6.2016. The petitioner filed a revision petition against the said order under the provisions of section 30 of the Act read with rule 54 of the rules, which is still pending. In the meanwhile, the respondent No. 2 has issued the impugned orders granting mining lease in favour of the respondents No. 5 and 6. 4. The respondents No.2 to 4 filed their detailed return and have also raised a preliminary objection as to maintainability of the writ petition on the ground of availability of an alternative efficacious remedy to the petitioner to file an application under section 30 of the Act read with rule 35 of the rules. It is strenuously urged that the case of the petitioner for grant of Prospecting Licence is an individual and independent case vis a vis the cases of the private respondents for grant of mining lease. 5. An interlocutory application (I.A. No.908/2020) questioning the maintainability of the present writ petition on the ground of availability of alternative remedy, is also filed on behalf of the respondents No.5 and 6 contending inter alia that the order under challenge is a revisable order before the Mining Tribunal situated in New Delhi, referring section 30 of the Act read with rule 54 of the Rules, which prescribed remedy of revision against any order passed by the State Government under the Act. Reliance is placed on Co-ordinate Bench orders passed by this passed in Writ Appeal No. 384/2009, decided on 30.11.2010 and W.A. No. 251/2012, decided on 7.2.2013. 6. We have bestowed our anxious consideration on the arguments advanced on behalf of the parties and have gone through the materials brought on record. Reliance is placed on Co-ordinate Bench orders passed by this passed in Writ Appeal No. 384/2009, decided on 30.11.2010 and W.A. No. 251/2012, decided on 7.2.2013. 6. We have bestowed our anxious consideration on the arguments advanced on behalf of the parties and have gone through the materials brought on record. We are of the considered view that an efficacious alternative remedy is available to the writ petitioner to claim the reliefs sought in the present writ petition. 7. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Indubitably, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226 of the Constitution. [See : State of U.P. v. Mohammad Nooh, AIR 1958 SC 86 ; Titaghur Paper Mills Co. Ltd. v. State of Orissa [ (1983)2 SCC 433 ]; Harbanslal Sahnia v. Indian Oil Corporation Ltd., [ (2003)2 SCC 107 ]; State of H.P. v. Gujarat Ambuja Cement Ltd. [ (2005)6 SCC 499 ]. 8. The Constitution Bench of the apex Court in K.S. Rashid and Sons v. Income Tax Investigation Commission, AIR 1954 SC 207 ; Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 ; Union of India v. T.R. Varma, AIR 1957 SC 882 ; State of U.P. v. Mohd. Nooh (supra), and K.S. Venkatraman and Co. (P) Ltd. v. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. [See : N.T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422 ; Municipal Council, Khurai v. Kamal Kumar [ (1965)2 SCR 653 ]; Siliguri Municipality v. Amalendu Das [ (1984)2 SCC 436 ] ; S.T. Muthusami v. K. Natarajan [ (1988)1 SCC 572 ]; Rajasthan STRC v. Krishna Kant, [ (1995)5 SCC 75 ]; Kerala SEB v. Kurien E. Kalathil [ (2000)6 SCC 293 ]; A. Venkatasubbiah Naidu v. S. Chellappan [ (2000)7 SCC 695 ]; L.L. Sudhakar Reddy v. State of A.P. [ (2001)6 SCC 634 ]; Shri Sant Sadguru Janardan Swami (Moingiri Hamaraj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [ (2001)8 SCC 509 ]; Pratap Singh v. State of Haryana [ (2002)7 SCC 484 ] and GKN Driveshafts (India) Ltd. v. ITO [ (2003)1 SCC 72 ]. 9. At this juncture it is apt to refer to the decision of the apex Court rendered in the case of Nivedita Sharma v. Cellular Operators Assn. of India [(2011)14 SCC 337], wherein it is ruled that where hierarchy of appeals is provided by the Statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows : “12. In Thansingh Nathmal v. Suptd. of Taxex [ AIR 1964 SC 1419 ] this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed : “7…. The High Court does not therefore, act as a Court of appeal against the decision of a Court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. The High Court does not therefore, act as a Court of appeal against the decision of a Court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” 10. In another decision reported in (1983)2 SCC 433 [Titaghur Paper Mills Co. Ltd. v. State of Orissa] the Supreme Court observed : “11. ... It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Wiles, J. in Wolverhampton New Waterworks Co. vs. Hawkesford, 141 ER 486 in the following passage : (ER p.495)……….”There are three classes of cases in which a liability may be established founded upon a statute…… But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it…….The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhere to.” The rule laid dosn in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tabago v. Gordon Grant and Co. Ltd., [1935 AC 532 (PC)] and Secy. Of State v. Mask and Co., [ AIR 1940 PC 105 ]. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore, justified in dismissing the writ petitions in limine.” 11. Ltd., [1935 AC 532 (PC)] and Secy. Of State v. Mask and Co., [ AIR 1940 PC 105 ]. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore, justified in dismissing the writ petitions in limine.” 11. It is also useful to refer to another decision of the apex Court rendered in the case of Mafatlal Industries Ltd. v. Union of India [ (1997)5 SCC 536 ], wherein B.P. Jeevan Reddy, J. (as His Lordship then was) speaking for the majority of the larger Bench, observed : “77. So far as the jurisdiction of the High Court under Article 226 – or for that matter, the jurisdiction of this Court under Article 32 – is concerned, it is obvious that the provisions of the Act cannot bar and curtain these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment .” (See: G. Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192 ; CCE v. Dunlop India Ltd., [ (1985)1 SCC 260 ]; Ramendra Kishore Biswas v. State of Tripura [ (1999)1 SCC 472 ]; Shivgonda Anna Patil v. State of Maharashtra [ (1999)3 SCC 5 ]; C.A. Abraham v. ITO [ (1961)2 SCR 765 ]; Titaghur Paper Mills Co. Ltd. v. State of Orissa [ (1983)2 SCC 433 ]; H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312; Whirlpool Corpn. v. Registrar of Trade Marks [ (1998)8 SCC 272 ]; Sheela Devi v. Jaspal Singh [(1999)1 SCC 209] and Punjab National Bank v. O.C. Krishnan [ (2001) 6 SCC 569 ].” 12. In the case of Union of India v. Guwahati Carbon Ltd. [(2912) 11 SCC 651], the apex Court reiterated the aforesaid principle and observed : “8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta [(1979)3 SCC]. In the said decision, this Court was pleased to observe that : (SCC p.88, para 23) : “23….. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta [(1979)3 SCC]. In the said decision, this Court was pleased to observe that : (SCC p.88, para 23) : “23….. When a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking (remedy) are excluded,” 13. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed din total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution of India if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 14. Thus analysed, on the bedrock of the aforesaid enunciation of law, in view of the availability of efficacious alternative remedy under the Act and the Rules framed thereunder, we decline to entertain the present writ petition. 15. Accordingly, the writ petition is dismissed with the liberty to the petitioner to avail the remedy under the Act, in accordance with law. In case if the petitioner files a revision before the competent authority within a period of 30 days from the date of receipt of the certified copy of the order passed today, the same shall be decided in accordance with law expeditiously, as far as possible within three months therefrom. In the facts and circumstances of the case there shall be no order as to costs. ..............