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2022 DIGILAW 2647 (RAJ)

State of Rajasthan v. Shree Cement Limited

2022-10-20

FARJAND ALI, VIJAY BISHNOI

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JUDGMENT : VIJAY BISHNOI, J. 1. This intra court special appeal writ has been preferred on behalf of the appellant-State being aggrieved with the order dated 18.09.2017 passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No. 2414/2016 (Shree Cement Ltd. vs. Union of India and Others) whereby the learned Single Judge while placing reliance on the judgment dated 23.08.2017 rendered by the learned Single Judge of this Court at Bench Jaipur in M/s. Wonder Cement Limited vs. State of Rajasthan and Others (S.B. Civil Writ Petition No. 126/2017) allowed the writ petition filed by the respondent No. 1-Company and quashed the orders dated 17.10.2015 and 27.10.2015 of cancelling the Letter of Intent (hereinafter to be referred as ‘the LOI’) issued in favour of the respondent No. 1-Company. 2. Learned Single Judge vide impugned order dated 18.09.2017 has directed that the appellant-State shall proceed to consider the case of the respondent No. 1-Company for grant of mining lease in accordance with law within three months from the date of receipt of the order while observing that it shall not raise any objection with respect to the limitation in reference to the Section 10A(2)(C) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter to be referred as ‘the Act of 1957’). 3. Brief facts of the case are that pursuant to the applications invited by the appellant-State vide Rajasthan Gazette Notification dated 14.10.2010 notifying the areas for grant of mining lease for mining the mineral Limestone in various Blocks of District Jaisalmer, the respondent No. 1-Company applied for grant of mining lease for mining the mineral Limestone (Cement Grade) in Block-Parewar (SN-V) District Jaisalmer. The appellant-State on 31.12.2014, after deciding the priority on merits in terms of Section 11(4) read with Section 11(3) of the Act of 1957, issued LOI in favour of the respondent No. 1-Company for mining the mineral Limestone (Cement Grade) over an area of 9.12 sq. kms. of Block-Parewar (SN-V) Tehsil and District Jaisalmer subject to fulfillment of 5 conditions of the LOI. 4. On 12.01.2015 vide Gazette of India, the Central Government promulgated an ordinance to amend the Act of 1957 in the name of Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 (hereinafter to be referred as ‘the Ordinance of 2015’). kms. of Block-Parewar (SN-V) Tehsil and District Jaisalmer subject to fulfillment of 5 conditions of the LOI. 4. On 12.01.2015 vide Gazette of India, the Central Government promulgated an ordinance to amend the Act of 1957 in the name of Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 (hereinafter to be referred as ‘the Ordinance of 2015’). In the Ordinance of 2015, it is provided that the State Government can grant mining lease in favour of the LOI holders subject to the condition that LOI is issued prior to issuance of the Ordinance of 2015 and the conditions of LOI are fulfilled within a period of two years from the date of commencement of the said Ordinance of 2015. However, the appellant-State vide orders dated 17.10.2015 and 27.10.2015 cancelled all the LOIs on the ground that several irregularities have been committed while issuing the same. 5. It is to be noticed that on 31.12.2014, several LOIs were issued by the appellant-State in favour of several companies including the respondent No. 1-Company, however, later on, all the said LOIs were cancelled by it vide orders dated 17.10.2015 and 27.10.2015. Subsequently, some of the companies, in whose favour the LOIs were issued, filed revision petitions before the Central Government and some of the companies directly challenged the action of the appellant-State of cancelling the LOIs by way of filing writ petitions before this Court. 6. The action of the appellant-State of cancelling the LOIs was set aside in some of the cases by the Central Government and in some of the cases by this Court mainly on the ground that before cancellation of those LOIs, opportunity of hearing was not granted to the LOI holders. 7. In the present case, the respondent No. 1-Company instead of filing revision petition before the Central Government directly filed a writ petition bearing SBCWP No. 2414/2016 before this Court and the learned Single Judge while issuing notices in that writ petition on 11.03.2016 passed an interim order directing the parties to maintain status quo regarding the area, which forms the subject matter of the LOI dated 31.12.2014. 8. 8. Finally, vide impugned order dated 18.09.2017, the writ petition bearing SBCWP No. 2414/2016 was allowed by the learned Single Judge of this Court while placing reliance on the judgment dated 23.08.2017 rendered in the case of M/s. Wonder Cement Limited (supra) and quashed the orders dated 17.10.2015 and 27.10.2015 with a direction that the appellant-State shall proceed to consider the case of the respondent No. 1-Company for grant of mining lease in accordance with law within three months from the date of receipt of the order and further directed that the appellant-State shall not raise any objection with respect to the limitation in reference to the Section 10A(2)(C) of the Act of 1957. 9. Learned counsel for the appellant-State has argued that the appellant-State is not aggrieved with the impugned order passed by the learned Single Judge to the extent of quashing the orders dated 17.10.2015 and 27.10.2015 of cancelling the LOI issued in favour of the respondent No. 1-Company, however, it is aggrieved with the directions given by the learned Single Judge that the appellant-State shall proceed to consider the case of the respondent No. 1-Company for grant of mining lease straightway without allowing it to examine the case of the respondent No. 1-Company by a duly constituted committee as directed in the case of M/s. Karni Mines and Minerals vs. State of Rajasthan and Others (S.B. Civil Writ Petition No. 8179/2016) and other connected writ petitions decided on 30.08.2017. 10. Learned counsel for the appellant-State has also argued that the learned Single Judge has erred in relying on the decision rendered in the case of M/s. Wonder Cement Limited (supra) as the said case is clearly distinguishable from the case of the respondent No. 1-Company. It is submitted that in the case of M/s. Wonder Cement Limited (supra), all the conditions mentioned in the LOI were fulfilled prior to 11.01.2017, whereas in the present case, the condition No. 1 was not fulfilled till the cutoff date i.e. 11.01.2017. It is also contended that the said condition No. 1 was not fulfilled when the writ petition bearing SBCWP No. 2414/2016 was filed by the respondent No. 1-Company and even was not fulfilled when the impugned order was passed. 11. It is also contended that the said condition No. 1 was not fulfilled when the writ petition bearing SBCWP No. 2414/2016 was filed by the respondent No. 1-Company and even was not fulfilled when the impugned order was passed. 11. Learned counsel for the appellant-State has further contended that in SBCWP No. 2414/2016 filed by the respondent No. 1-Company, no prayer was made for grant of mining lease or proceeding for the same and in such circumstances, the learned Single Judge has erred in giving positive direction for grant of mining lease in favour of the respondent No. 1-Company. 12. Learned counsel for the appellant-State has submitted that even in similar type of cases, the learned Single Judge has already observed that the State Government is free to examine each case by constituting a committee of three senior officials, therefore, a similar direction is required to be issued in the present case also. Learned counsel for the appellant-State has, therefore, prayed that the impugned order dated 18.09.2017 passed by the learned Single Judge may kindly be quashed and the appellant-State be allowed to examine the case of the respondent No. 1-Company by a duly constituted committee of the officials of the State Government and thereafter to decide the case of the respondent No. 1-Company in accordance with law on the basis of the report of the committee. 13. Per contra, learned counsel appearing for the respondent No. 1-Company has vehemently opposed the prayer of the appellant-State and submitted that the case of the respondent No. 1-Company is squarely covered by the decision rendered by the learned Single Judge in the case of M/s. Wonder Cement Limited (supra), therefore, there is no illegality in passing the impugned order dated 18.09.2017. It is further submitted that in the case of the respondent No. 1-Company, no such direction, as given in the case of M/s. Karni Mines and Minerals (supra), can be given because inquiry regarding issuance of LOI in the case of the respondent No. 1-Company was already conducted and the State Government itself filed a report of this effect before the Division Bench of this Court at Bench Jaipur in the public interest litigation (PIL) being Ram Singh Kaswan vs. Union of India and Others (D.B. Civil Writ Petition No. 5940/2015) while claiming that no illegalities or irregularities have been committed in issuance of LOIs in favour of the respondents. It is submitted that the learned Single Judge has rightly observed that in view of the observations of the Division Bench of this Court at Bench Jaipur in the case of Ram Singh Kaswan (supra), it is not required in the case of the respondent No. 1-Company to direct the appellant-State to examine its case through a committee of the State Government. 14. It is argued by learned counsel for the respondent No. 1-Company that the respondent No. 1-Company took all the steps to fulfill the condition No. 1 of the LOI prior to cut-off date i.e. 11.01.2017. It is submitted that it is an omission on the part of the appellant-State as it has failed to obtain area relaxation as per the provision of Section 6(1)(b) of the Act of 1957 from the Central Government, the condition No. 1 could not be fulfilled by the respondent No. 1-Company. Learned counsel for the respondent No. 1-Company has argued that default/omission on the part of the appellant-State cannot cause prejudice or adversely affect the right of the respondent No. 1-Company. 15. In support of the above contention, learned counsel for the respondent No. 1-Company has placed reliance on the decision dated 19.03.2007 rendered by the Hon’ble Supreme Court in Kusheshwar Prasad Singh vs. State of Bihar and Others, (2007) 11 SCC 447 . 16. Learned counsel for the respondent No. 1-Company has, therefore, prayed that the impugned order dated 18.09.2017 passed by the learned Single Judge is not liable to be interfered with and the instant special appeal writ filed by the appellant-State is liable to be dismissed. 17. Heard learned counsel for the parties. 18. The only question remains to be decided as to whether the learned Single Judge has rightly directed the appellant-State to proceed to consider the case of the respondent No. 1-Company for grant of mining lease in accordance with law within specified time limit without keeping it open for the appellant-State to see whether the LOI issued in favour of the respondent No. 1-Company is in accordance with law or not. 19. 19. True, it is that in the case of M/s. Karni Mines and Minerals (supra) and in the cases of other companies, the learned Single Judge while quashing the orders dated 17.10.2015 and 27.10.2015 directed the State Government to pass a fresh order in accordance with law after examining each case separately by a duly constituted committee comprising of at least three senior officials, however, in the case of the respondent No. 1-Company, the learned Single Judge has not passed the similar order while taking into consideration the observations made by the Division Bench of this Court at Bench Jaipur in case of Ram Singh Kaswan (supra) decided on 12.05.2015, whereby the said writ petition (PIL) challenging the issuance of LOIs in favour of respondents was dismissed while taking note of the stand of the State Government that there was no illegality in issuance of mining lease in favour of the respondents. 20. In our view, the learned Single Judge has rightly not passed the similar order as passed in the case of M/s. Karni Mines and Minerals (supra) because in the case of the respondent No. 1-Company, the State Government had already took a stand in the case of Ram Singh Kaswan (supra) that there was no illegality in issuance of the LOIs in favour of the respondents. 21. So far as the argument of the appellant-State that the respondent No. 1-Company has not fulfilled the condition No. 1 of the LOI till expiry of cut-off date is concerned, the same is also of no substance. 22. It is noticed that the LOI was issued in favour of the respondent No. 1-Company on 31.12.2014 and the respondent No. 1-Company was required to fulfill around five conditions before the cut-off date i.e. 11.01.2017. 23. As per the case of the appellant-State, the respondent No. 1-Company has failed to fulfill the condition No. 1 prior to cutoff date i.e. 11.01.2017 and, therefore, no direction can be issued by the learned Single Judge for consideration of the case of the respondent No. 1-Company for grant of mining lease as directed in the case of M/s. Wonder Cement Limited (supra) because in that case all the conditions of the LOI were admittedly fulfilled prior to the cut-off date. 24. 24. It is to be noticed that the condition No. 1 of the LOI dated 31.12.2014 is regarding approval of progressive mine closure plan or approval of mine plans and it is not in dispute that after issuance of LOI dated 31.12.2014, the respondent No. 1-Company immediately submitted the draft copies of the required plans, as per the condition No. 1 of the LOI, before the Indian Bureau of Mines (hereinafter to be referred as ‘the IBM’). The IBM conducted the site inspection on 17.07.2015 and asked the respondent No. 1-Company to furnish final and fair sets, which were submitted by the respondent No. 1-Company on 23.10.2015. However, the IBM returned the maps on the ground that the State Government has not obtained the area relaxation as provided under Section 6(1)(b) of the Act of 1957. In the meantime, the LOI issued in favour of the respondent No. 1-Company was cancelled by the appellant-State vide orders dated 17.10.2015 and 27.10.2015. 25. In such circumstances, it cannot be said that there was any fault on the part of the respondent No. 1-Company in not getting approval of progressive mine closure plan or approval of the mine plan from the Mining Department. More over, the order for area relaxation was not required to be obtained by the State Government in view of the fact that on 12.05.2016, the Central Government already increased the area from 10 sq. kms. to 50 sq. kms. in respect of the mineral Limestone in the State of Rajasthan. 26. As the learned Single Judge had already passed an interim order in SBCWP No. 2414/2016 filed by the respondent No. 1-Company directing the parties to maintain status quo regarding the area, which forms the subject matter of the LOI issued in favour of the respondent No. 1-Company, the respondent No. 1-Company again applied before the IBM for approval of mining plan, however, the IBM did not approve the same in view of the status quo order passed by the learned Single Judge but ultimately the mining plans were approved on 30.05.2018, obviously after passing of the impugned order dated 18.09.2017. 27. 27. Be that as it may, the fact remains that there is no fault on the part of the respondent No. 1-Company, who had immediately approached the Mining Department for approval of mine plans as per the requirements of the LOI but the same could not be granted prior to the cut-off date only because the State Government failed to obtain area relaxation from the Central Government. 28. The Hon’ble Supreme Court in the case of Kusheshwar Prasad Singh (supra) has held as under: “16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently “a wrongdoer ought not to be permitted to make a profit out of his own wrong.” 29. In view of the above discussions, we don’t find any case for interference, therefore, this special appeal writ is hereby dismissed.