Jayaswal Neco Industries Ltd. vs Union Of India & Others
2009 Latest Caselaw 3258 Del

37.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 10756/2009

                                   Date of decision: 19th August, 2009


      JAYASWAL NECO INDUSTRIES LTD.                        ..... Petitioner
                       Through Mr. P.S. Patwalia, Sr. Advocate with Mr.
                       Devashish Bharuka and Ms. Jaya Bharuka,
                       Advocates.
                 versus
      UOI & ORS.                                       ..... Respondents
                       Through Mr. A.S. Chandhiok, ASG with Ms.
                       Maneesha Dhir & Ms. Preeti Dalal, Advocates for
                       UOI.
                       Mr. Atul Jha, Advocate for respondent No. 2.
                       Dr. A.M. Singhvi & Mr. Ravindra Srivastava, Sr.
                       Advocates with Mr. R.N. Karanjawala, Mr. Gopal
                       Jain, Ms. Mandini Gore, Ms. Sonia Nigam, Ms.
                       Lakshmi Ramachandran & Mr. kartik Bhatnagar,
                       Advocates for respondent No. 3-Tata Steel
                       Limited.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

      1. Whether Reporters of local papers may be
      allowed to see the judgment?
      2. To be referred to the Reporter or not ?
      3. Whether the judgment should be reported
      in the Digest ?

                                ORDER

%

1. The petitioner, Jayaswal Neco Industries Limited, has filed two

revision applications under Section 30 of the Mines and Minerals

(Development and Regulation) Act, 1957 read with Mineral Concession

Rules, 1960. The revision applications pertain to rejection of their two

W.P. (C) No. 10756/2009 Page 1 mining lease applications in respect of 1601.47 hectares and 205 hectares

of land in Rawghat Deposits. The rejection orders were passed by the

State of Chhattisgarh on 31st January, 2007.

2. Private respondent No. 3, M/s Tata Steel Limited, has also filed a

revision application against the order dated 31st January, 2007 passed by

the State of Chhattisgarh rejecting their applications for mining lease in

respect of 4140.17 hectares in Rawghat Deposits.

3. By the impugned order dated 24th July, 2009, learned tribunal has

allowed the impleadment application of the third respondent in revision

applications filed by the petitioner herein. This direction/decision of the

learned tribunal is challenged by the petitioner by way of the present writ

petition. By the same order, the petitioner has been impleaded as a

respondent in the revision application filed by the third respondent.

4. Reliance placed by the learned counsel for the petitioner on Rule

54(2) of the Mineral Concession Rules, 1960 is misconceived. The said

Rule reads as under:-

"Rule 54. Application for revision.-

      (1)    XXXXX

      (2)    In every application under sub-rule (1) against

the order of a State Government refusing to grant a prospecting licence or a mining lease, any person to whom a prospecting licence or mining lease was granted in respect of the same area or for a part thereof, shall be impleaded as party."

W.P. (C) No. 10756/2009 Page 2

5. The said Rule stipulates that a party challenging an order refusing

grant of prospecting licence or mining lease should implead the party in

whose favour prospecting licence or mining lease has been granted. The

said Rule is a positive provision and mandates that the successful party in

whose favour prospecting licence or mining lease has been granted,

should be impleaded as a party to the revision application, when grant of

prospecting licence or mining lease is challenged. The aforesaid Rule is

not couched in a negative language and does not prohibit impleadment of

a private party in cases where learned tribunal feels that for a just and

fair decision, a private party should be impleaded. Rule 54(2) of the Mining

Concession Rules, 1960 does not by implication or implied intendment

prohibit and bar impleadment in cases of the present nature. In the

present case, three orders dated 31st January, 2007 passed by the State

of Chhattisgarh are challenged before the learned tribunal. By the said

orders, two applications made by the petitioner and the applications made

by the respondent No. 3 have been rejected. There is no successful party,

who has been granted a mining lease. It is difficult to accept the

contention of the petitioner that Rule 54(2) of the Mining Concession

Rules,1960 prohibits and bars learned tribunal from impleading respondent

No. 3 as a party in the revision applications filed by the petitioner or from

the petitioner being impleaded as a party to the revision application filed

by the respondent No. 3. Rule 54(2) does not expressly or impliedly

W.P. (C) No. 10756/2009 Page 3 prohibit impleadment in such cases. Of course, whether a private party

should be impleaded is a matter of discretion, which is to be exercised by

the learned tribunal in the facts and circumstances of each case.

6. It is fairly well settled that quasi judicial tribunals on procedural

matters are entitled to adopt a procedure, which it feels is just and fair

unless there is a specific or implied bar and prohibition, which prevents the

tribunal from following the said procedure. Every procedure is permitted

and is permissible, until it is shown to be prohibited by law (See Hansraj

Harjiwan Bhate versus Emperor, AIR 1940 Nag. 390 following

Narsingh Das versus Mangal Dubey, 1882 ILR 5 Allahabad 163).

7. In the present case, learned tribunal has noticed that the area,

which is subject matter of the three revision applications; two filed by the

petitioner and one filed by the respondent No. 3, overlap. Therefore,

learned tribunal has held that in the interest of justice and with a view to

afford opportunity of hearing to both parties, they should be impleaded in

the revision applications filed by the other side. The order passed by the

learned tribunal is a discretionary order and is in the interest of justice as it

ensures that there will be effective and complete adjudication of the

subject matter. It will prevent conflicting decisions, which is possible if the

revision applications filed by the petitioner and the respondent No. 3 are

heard and decided separately without hearing the petitioner or the

respondent No. 3, as the case may be.

W.P. (C) No. 10756/2009 Page 4

8. The discretion exercised by learned Tribunal in the present case

does not require interference in a writ petition under Article 226 of the

Constitution of India, as the learned Tribunal is entitled to follow its own

procedure and proceed in a manner it feels is just, fair and equitable.

There has to be effective and complete adjudication after hearing the

parties. Attempt should be to prevent further litigation.

9. Further, quasi judicial tribunals have ancillary and incidental power

to ensure that there is effective adjudication and decision. In the case of

Suresh Jindal versus BSES Rajdhani Power Limited, (2008) 1 SCC

341, the Supreme Court has observed that a statutory authority while

exercising statutory power may do all things, which are necessary for

giving effect thereto.

10. The Supreme Court in the case of Income Tax Officer,

Cannanore versus M.K. Mohammed Kunhi, AIR 1969 SC 430 had

examined the question whether Income Tax Appellate Tribunal has the

right to grant stay of the impugned demand during pendency of an appeal

before them. It was observed by the Supreme Court:-

".....It is a fairly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, Articles 5401 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to W.P. (C) No. 10756/2009 Page 5 make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition, Vol. 1 at page 88, it has been stated:

"It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it."

Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoqe concessa esse vindentur, sine quibus jurisdictio explicari non potuit." An instance is given based on Ex Parte, Martin, (1879) 4 QBD 212 at p.491 that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedly conveyed by the enactment, for the power would be unless if it could not be enforced."

11. In a subsequent portion of the said judgment, it was further

observed as under:-

"8. Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner but the Act is silent in that behalf when an appeal is pending before the Appellate W.P. (C) No. 10756/2009 Page 6 Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory."

12. Learned counsel for the third respondent has submitted that the impugned order ensures fair hearing and is in consonance with the principles of natural justice. There is merit in the said submission. In Mangilal versus State of M.P., (2004) 2 SCC 447, while referring to the principles of natural justice, it was observed as under:-

" 10. Even if a statute is silent and there are no positive words in the Act or the Rules made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. No form or procedure should ever be permitted to exclude the presentation of a litigant's defence or stand. Even in the absence of a provision in procedural laws, power inheres in every tribunal/court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on the principles of natural justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principle. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express

W.P. (C) No. 10756/2009 Page 7 words of statute or necessary intendment. (See Swadeshi Cotton Mills v. Union of India) Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are a means to an end and not an end in themselves. The principles of natural justice have many facets. Two of them are: notice of the case to be met, and opportunity to explain."

13. Similar observations have been made by the Supreme Court in the

case of Scheduled Caste and Weaker Section Welfare Association

(Regd.) and Another versus State of Karnataka and Others, (1991)

2 SCC 604 holding, inter alia, that if there is power to decide and

determine an issue to the prejudice of a person, duty to act judicially is

implicit for the said decision and the rule of natural justice operates in

areas not covered by any law validly made. What particular rule of natural

justice should apply in a given case depends upon the facts and

circumstances of each case, the framework of law under which the enquiry

is to be held and the body of persons appointed for the said purpose.

Learned tribunal has held that opportunity and hearing should be granted

to the third respondent and the petitioner in the revision filed by the other

side.

14. Learned counsel for the petitioner has relied upon decision of the

Supreme Court in the case of Swadeshi Cotton Mills versus Union of

India, (1981) 1 SCC 664 observing that rules of natural justice can

W.P. (C) No. 10756/2009 Page 8 operate only in areas not covered by any law validly made. The

contention of the petitioner is based upon Rule 54(2) of the Mineral

Concession Rules, 1960 and the said Rule bars or prohibits the learned

tribunal for impleading any third person as a party to a revision

application. The said Rule has been considered and interpreted above. It

has been held that the said Rule does not prohibit and bar impleadment of

respondent No. 3 in two revision applications filed by the petitioner.

15. A favourable decision on the revision applications filed by the

petitioner or the respondent No. 3 will result in prejudice to the other side.

There is a direct contest and contradictory claim of the two parties. There

is a possibility of conflicting decisions, which should be avoided. Further,

in case the petitioner's or the respondent No. 3's revision application is

allowed, the losing side will invoke writ jurisdiction questioning the

decision of the learned tribunal. In fact, it may be noticed that the

respondent No. 3 had earlier filed W.P. (C) No. 9260/2007 against the

petitioner herein and the State of Chhattisgarh after order dated 28th

September, 2007 was passed in favour of the petitioner allowing the

revision application. The State of Chhattisgarh too filed a writ petition

against the said order dated 28th September, 2007. The writ petition filed

by the State of Chhattisgarh was allowed and the matter was remanded

back to the learned Tribunal.

W.P. (C) No. 10756/2009 Page 9

16. The second decision relied upon by the petitioner in the case of

Mohammed Hasnuddin versus State of Maharashtra, (1979) 2 SCC

572 holds that every tribunal of limited jurisdiction is bound to exercise its

jurisdiction within limits of its special jurisdiction. It is the duty of a special

tribunal to examine whether the jurisdictional facts exist before it assumes

jurisdiction. The said judgment is not relevant to the legal issue raised. It

is admitted that the learned tribunal has jurisdiction to entertain the

revision applications. The question raised is whether the third respondent

should be heard in the revision applications filed by the petitioner. As held

above, there is no specific bar in the Act or the Rules which prohibits or

stipulates that a private party cannot be heard in the revision application.

Rule 54(2) of the Mineral Concession Rules, 1960 provides for a positive

mandate that a successful party in whose favour prospecting licence or

mining lease has been granted, should be made a party to the revision

application filed by an unsuccessful party. There is no express or implied

provision or bar which is applicable to the factual background of the

present case. Applications of the petitioner as well as the respondent No.

3 for grant of mining lease have been rejected. There is no successful

party as such.

17. As noticed above, the impugned order dated 24th July, 2009 has

allowed impleadment application filed by the petitioner in the revision

application filed by the respondent No. 3. Learned counsel for the

W.P. (C) No. 10756/2009 Page 10 petitioner submitted that the petitioner had a prospecting licence and,

therefore, in terms of Rules 59 and 60 of the Mineral Concession Rules,

1960, their claim for impleadment stands on a different footing and it

cannot be treated at par with the claim of impleadment made by the

respondent No. 3. This argument does not rely upon Rule 54(2) of the

Mineral Concession Rules, 1960 and is contrary to the interpretation

propounded by the petitioner that only a successful party can be

impleaded and has right to be heard in a revision application filed before

the tribunal. The revision applications are for grant of mining leases and

not prospecting licences. The respondent No. 3 has filed a revision

application for grant of a mining lease. Whether the said claim should be

rejected under the Mineral Concession Rules, 1960 is a question relating to

merits and not Section 54 (2) of the Act.

18. Learned counsel for the petitioner submitted that the revision

applications can be taken up simultaneously but the revision application

filed by the respondent No. 3 should be decided first. It is open to the

petitioner to make a request before the learned tribunal and if any such

prayer is made, the same will be considered and decided by the said

tribunal. It may not be appropriate for this Court to regulate the

procedure, manner and mode of hearing before the learned tribunal. This

is entirely a matter of discretion for the tribunal. No directions or orders

are required. Of course, it will be open to the respondent No. 3 to

W.P. (C) No. 10756/2009 Page 11 contend that the arguments in the three revision applications should be

heard simultaneously. This Court need not express any view on the said

aspect in the present writ petition.

19. The writ petition is accordingly dismissed with the observations made above.

SANJIV KHANNA, J.

      AUGUST 19, 2009
      VKR




W.P. (C) No. 10756/2009                                         Page 12