Tata Steel Ltd. vs Union Of India & Ors.
2011 Latest Caselaw 5399 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                    Judgment reserved on: 19.10.2011

%                   Judgment delivered on: 09.11.2011


+      W.P.(C) 7587/2011 & C.M. Nos. 17174-75/2011

       TATA STEEL LTD.                                 ..... Petitioner
                           Through:   Dr. A.M. Singhvi and Mr. Ravindra
                                      Srivastava, Senior Advocates, with
                                      Mr. R.N. Karanjawala and Mr. Gopal
                                      Jain, Advocates

                      versus

       UNION OF INDIA & ORS.                            ..... Respondents
                       Through:       Ms. Maneesha Dhir, Preeti Dalal
                                      and Mithun Jain, Advocate for
                                      respondent No. 1.

                                      Mr. Ajit Kumar        Sinha, Senior
                                      Advocate, with       Mr. Devashish
                                      Bharuka & Ms.        Jaya Bharuka,
                                      Advocates for the    respondent No.
                                      3.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                 :      No

2.     To be referred to the Reporters or not?         :      No

3.     Whether the judgment should be reported
       in the Digest?                                  :      No

                               JUDGMENT

VIPIN SANGHI, J.

1. By this writ petition filed under Articles 226 and 227 of the

Constitution of India, the petitioner Tata Steel Limited assails the Order

No.556, dated 19.08.2011 passed by the Mines Tribunal under Section

30 of the Mines and Minerals (Development and Regulations) Act, 1957

(MMDR Act) and Rule 54 of the Mineral Concession Rules, 1960 (MCR)

in revision application preferred by respondent No. 3, M/s. Jayaswal

Neco Industries Limited (JNIL).

2. By the impugned order, the said revision petition has been

allowed, and the impugned order dated 31.01.2007 passed by the

State Government, i.e. State of Chhattisgarh, respondent no.2 rejecting

the application for four mining leases made by respondent no.3 has

been set aside. A direction has been issued to respondent no.2, State

of Chhattisgarh to pass a reasoned order in accordance with law,

keeping in view Section 11(1) of the MMDR Act within a period of 90

days of the passing of the impugned order dated 19.08.2011.

3. Four Prospecting Licenses (PL) were sanctioned by the erstwhile

Govt. of Madhya Pradesh in favour of respondent no.3, JNIL in Rowghat

iron ore of Matla Reserve Forest of Narayanpur Forest Division, South

Bastar District under the MMDR Act, for a period of two years. After

completion of the prospecting operation under the said PLs, JNIL

submitted four applications for granting mining leases against the said

four PLs.

4. The details of the said applications have been set out in the

impugned order and the same read as follows:

Sr. Application Detail for the applied area Area applied No. Date (Ha)

1 16/5/2000 Forest Compartment No. 122 186.00 (Part), 137 (Part), 138 (Part)

2 16/5/2000 Forest Compartment No. 116 381.00 (Part), 117 (Part), 118 (Part), 119 (Part), 120 (Part), 139 (Part), 149 (Part), 155 (Part), 157 (Part), 167 (Part).

         3    16/5/2000     Forest Compartment No. 180        388.00
                            (Part), 181 (Part), 194 (Part),
                            196 (Part), 112 (Part), 114
                            (Part), 111 (Part), 110 (Part),
                            105 (Part), 104 (Part), 195
                            (Part)

         4    16/5/2000     Forest Compartment No. 111        646.47
                            (Part), 110 (Part), 109 (Part),
                            108 (Part), 107 (Part), 82
                            (Part), 106 (Part), 105 (Part),
                            104 (Part)

The said four applications were rejected by the respondent no.2

State Government.

5. Respondent no.3 assailed the order of the State Govt. by filing

the aforesaid revision application under Section 30 of the MMDR Act

readwith Rule 54 of the MCR. It appears, by order dated 28.09.2007,

the Mining Tribunal allowed the revision application preferred by

respondent no.3. Respondent no.2, State of Chhattisgarh assailed the

order dated 28.09.2007 of the Mining Tribunal before this Court by

filing W.P. (C) No.396/2008. By order dated 13.01.2009, the said writ

petition was disposed of.

6. The Division Bench was of the view that the Tribunal should have

considered the report dated 20.09.2007 submitted by the Chief

Vigilance Officer (CVO), Mineral Exploration Corporation Limited,

Nagpur (now, Chief Vigilance Officer, Indian Bureau of Mines), which

was the outcome of a reference/complaint made on 15.07.2007 by the

Secretary, Khanij Sadhan Vibhag, State Govt. of Chhattisgarh to the

Secretary, Ministry of Mines, Govt. of India. The Division Bench

observed that the said report of the CVO dated 20.09.2007 was not

placed before the Mining Tribunal when the impugned order dated

28.09.2007 was passed by the Tribunal. Consequently, without

commenting on the content of the report of the CVO, one way or the

other, the Division Bench remanded the matter back for

reconsideration by the Tribunal after taking into consideration the said

report of the CVO. The order dated 28.09.2007 was, therefore, set

aside. The impugned order has now been passed by the Tribunal in

pursuance of the order of the Division Bench of this Court, as aforesaid,

and after taking into consideration the report of the CVO.

7. The petitioner, Tata Steel Limited was impleaded as a party in

the revision proceedings, as the petitioner had also staked a claim to

obtain mining leases in respect of the areas in question.

8. The first submission of learned senior counsel for the petitioner is

that the Tribunal, while passing the impugned order, has not

considered the report of the CVO, which records the factual findings

against respondent no.3. It is submitted that the report of the CVO

establishes that the respondent no.3 had, in fact, not carried out any

prospecting operations after obtaining the PL, and that respondent

no.3 had forged and fabricated reports and communications to claim

that it had conducted prospecting operations in the areas in question.

9. It is secondly argued that the PL granted to respondent no.3 did

not become operational as it was conditional upon the obtainment of

clearance under Section 2 of the Forest Conservation Act, 1980 (Forest

Act) which was never obtained. It is argued that the Central Govt.

while granting the PL had put the following mandatory condition:

"Before allowing the grant of PL, the State Government may kindly ensure the compliance of the amended provisions of the Act and Rules, and other applicable Act and Rules, including Forest (Conservation) Act, 1980."

10. It is argued on the basis of Section 19 of the MMDR Act, that the

PL was granted in contravention of the provisions of the Act and the

Rules framed thereunder, and, therefore, the same was void and of no

effect. Respondent no.3, on account of its failure to comply with the

statutory requirements, as also to carry out the prospecting operations

in the area in question, did not derive any preferential right to obtain a

mining lease under Section 11 of the MMDR Act.

11. Learned senior counsel for the petitioner has read out various

portions of the report of the CVO in support of the aforesaid

submissions. It is argued that the scope of the jurisdiction of the

revisional authority is limited, and the revisional authority could not

have examined the report of the CVO threadbare. It is also submitted

that the PL having been granted in respect of reserve forest land, to

which Forest Act was applicable, no such license could have been

granted without prior permission of the Divisional Forest Officer, and

without fulfilling the conditions in this regard. No prospecting

operations could have been carried out in the reserved/protected

forest area. It is argued that the State Govt. had raised various queries

on the Divisional Forest Officer, Narayanpur, Forest Division in relation

to the prospecting operations claimed to have been carried out by the

respondent no.3, and in response to the queries, the Divisional Forest

Officer had responded by stating, inter alia, that permission for land

entry for prospecting was not granted by the office of the Divisional

Forest Officer; no officer/official was deputed for inspection during

prospecting/exploration operation and watching the prospecting

operations; the respondent no.3 had not carried out any prospecting

operation, and; as prospecting operation had not been carried out, no

damage had been caused to forest area. At the same time, it was

stated that the office of the Divisional Forest Officer had received

undertaking of respondent no.3 on 16.09.1999 in compliance of the

conditions laid down.

12. Learned senior counsel for the petitioner further submits that the

fabrication of the communications and prospecting reports is

established by the fact that copies thereof were not sent to the State

Govt. even though the same is prescribed under the Rules. It is argued

that the communication allegedly sent to Indian Bureau of Mines,

Nagpur (IBM) were sent after the formation of the State of

Chhattisgarh, whereas they purportedly show that they were sent prior

to the date of the formation of the State of Chhattisgarh. Even the

telephone connections of the numbers printed on the letterhead of the

respondent no.3 in these communications were obtained much after

the date on which the said communications were purportedly sent.

13. It is argued that under Rule 52 of the Mineral Concession and

Development Rules, 1988 (MCDR), the holder of a PL is required to

simultaneously submit a copy each of the notice/return/intimation

required to be submitted under the said Rules to the State Govt.

concerned in whose territory the mine or the prospecting area is

situated or to such other authority as the Govt. may specify in this

behalf.

14. The petition is opposed by respondent no.3, who has appeared

on caveat. Learned counsel for respondent no.3 points out that the

vigilance enquiry report prepared by the CVO itself shows that all the

correspondence and documents sent by respondent no.3 were found

on the record of IBM, and there was no violation or irregularity found

therein. It is submitted that a perusal of the report of the CVO would

show that the lapse was on the part of the office of the IBM who did not

maintain a proper system of receiving documents and granting

acknowledgment thereon. It is on this account that some confusion

was created. It is argued that the report of the CVO was considered by

the CVC as well as by the Govt. and the only lapse found, was in the

office of the IBM, as aforesaid, in the process of acknowledging receipt

of documents and correspondences. It is for this reason that the only

action taken on the basis of the report of the CVO was to issue a

caution to the IBM and its officers concerned. No action was proposed

to be taken against respondent no.3, as no wrongdoing was attributed

to the said respondent. It is further submitted that it does not lie in the

mouth of the State Govt. to claim that the respondent no.3 had not

carried out the prospecting operation. The Tribunal in the revisional

order takes note of the letter dated 08.10.2004 issued by the State

Govt. to the Central Govt. confirming that the prospecting operation

had been carried out by respondent no.3 in the subject area and 64

million tonnes was approved/established as the ore as in the

prospecting reports. The State Govt. has, therefore, admitted that

respondent no.3 had conducted the prospecting operations. Learned

counsel further submits that the Tribunal having returned a finding of

fact after examining the material placed before its, this Court should

not interfere with the same, as the same is well reasoned and founded

upon cogent material considered by the Tribunal.

15. Learned counsel submits that the revisional power of the Central

Govt. under Section 30 of the MMDR Act has to be viewed in the light

of the fact that the mining lease can be granted by the State Govt.

only with the previous approval of the Central Govt. (under Section 5 of

the MMDR Act). He further submits that Rule 55(4) of the MCR throws

further light on the power of the Central Govt. While dealing with a

revision application against the order of the State Govt., the Central

Govt. may confirm, modify or set aside the order or pass such other

order in relation thereto, as the Central Govt. may deem just and

proper. The power of the Central Govt. under Section 30 of the MMDR

Act is wide, and not narrow, as contended by the petitioner.

16. Learned counsel for the respondent further submits that the

Tribunal while disposing of the petitioners revision application has not

directed the grant of the mining lease to respondent no.3, but has

merely directed the State Govt. to pass a reasoned order in

accordance with law, keeping in view Section 11(1) of the MMDR Act

within a period of 90 days. He submits that the petitioner has no

reason to be aggrieved by the impugned order.

17. Having heard learned counsels for the parties and perused the

impugned order as well as the document relied upon by the parties, I

am of the considered view that the impugned order dated 19.08.2011

passed by the Tribunal has been passed within the Tribunal's

jurisdiction, is legal and justified, and I do not find any infirmity therein

which would call for interference in the exercise of the jurisdiction of

this Court under Article 226 of the Constitution of India.

18. A perusal of the impugned order would show that the same is

detailed and has considered all the submissions raised by the

petitioner as well as the State Govt. in support of the order of the State

Govt. dated 31.01.2007. So far as the report of the CVO is concerned,

for the consideration whereof the matter was remanded back to the

Tribunal, the Tribunal has in depth considered the said report, as is

evident from para 8 onwards of the impugned order. In para 9, the

Tribunal notices the status of report prepared by CVO under Section

8(1)(c) of the Central Vigilance Commission Act, 2003 (CVC Act). The

Tribunal rightly observed that the report of the CVO is not final. The

said report is forwarded to the CVC. The CVC advices the Central Govt.

on the action to be taken. It is for the Central Govt. to consider the

advice of the CVC and take appropriate action.

19. In this case, after the CVO submitted its report to the Ministry of

Mines on 20.09.2007, the Ministry of Mines examined the CVO report

and sought advice from the CVC on 27.02.2008. The CVC examined

the CVO report and on 20.03.2008 advised the Ministry of Mines to

issue a mere caution memo to Sh. M.K. Pareshar, RCOM, Sh. Ajay

Srivastava, STA(G) and Sh. AM. Kamble, Sr, Mining Geologist of the

IBM. This was done under Section 17(2) of the CVC Act. The Ministry

of Mines acted under Section 17(3) of the CVC Act, accepted the advice

of the CVC, and closed the complaint against respondent no.3 by only

issuing a direction to IBM to comply with the advice of the CVC. This

was done vide letter dated 17.04.2008. Pertinently, the allegations

contained in the report of the CVO to the effect that there was forging

of acknowledgement of letters claimed to have been issued by JNIL;

that there was no record of receipt of letters addressed by JNIL to

Controller General IBM; that the prospecting report was prepared after

the creation of the State of Chhattisgarh, i.e. after the date when it was

purported to have been submitted; that the analysis report was

prepared after 12.09.2005, were not accepted by the CVC and by the

Ministry of Mines. This was primarily on the basis of the finding that

the proper office procedure with regard to maintaining of receipt of

letters; issuing acknowledgement for hand delivered letters; proper

maintenance of files, work diaries, etc., were not being followed by

IBM. Pertinently, the CVO had also returned the aforesaid finding, and

the finding that there was no system at IBM of keeping a record of the

specimen signatures of Officers on whom statutory powers are

bestowed, and those occupying sensitive seats.

20. I may also refer to the various findings of fact returned by the

Tribunal in the impugned order which have not been challenged before

me. The Tribunal records that "Perusal of the CVO report clearly

reveals that these three documents were found in the original record of

IBM and the existence cannot be construed as fabricated documents".

21. On the question as to how the documents were being received in

the office of IBM, IBM had clarified "that different persons were

authorized during the relevant period for receiving dak (incoming

letters). In their absence, in practice, someone else can receive the

dak".

22. The learned Tribunal also rejects the approach of the CVO in

comparing the signature on the acknowledgement with the signature

of the Regional Controller of Mines (RCOM). This approach was rejected

by observing that every government authority/ministry receives

innumerable letters, many of them are addressed to the higher

authorities like the Minister, Secretary etc. and it cannot be expected

that every letter is acknowledged in person. As a normal course of

practice, there is a department or section, or atleast a person assigned

to accept the incoming dak. IBM accepted to existence of such a

procedure. For this reason, the Tribunal has held that the comparison

of the signature on the acknowledgement produced by JNIL with that of

the RCOM is an erroneous approach. The Tribunal also observes that

this erroneous approach appears to be the reason why both the CVC

and the Ministry of Mines discarded the findings of the CVO regarding

forgery. The petitioner has not been able to point out any error in the

said reasoning adopted by the Tribunal to arrive at its finding.

23. The Tribunal also takes note of the clarification issued by RCOM

which was apparently ignored by the CVO while making his report.

RCOM had issued a letter dated 22.02.2007 stating that as per office

records, the relevant documents (which according to the petitioner and

the State Govt. were fabricated and acknowledgment thereon was

forged) are found in order, and that there was no standing violation

regarding prospecting operations for the areas in question. RCOM had

clarified that the letters of the respondent no.3, JNIL, which were

alleged to be forged and fabricated, related to compliance of MCDR,

1988, and show that the Rules were considered as complied. RCOM

had also stated that there should not be any doubt that the documents

were not submitted in 1999 and 2000. The Tribunal also notes that the

prospecting reports submitted by respondent no.3 were available with

the State Government and this fact had been admitted by them.

Pertinently, there are finding of fact returned on the basis of record

produced before the Tribunal. These finding of fact have not been

assailed, and could not have been assailed before this Court, except on

the ground of perversity. That is not the case argued by learned senior

counsels for the petitioner.

24. The CVC and the Ministry of Mines accepted the report of the

CVO only with regard to mismanagement in maintenance of records by

IBM which led to creation of confusion and, accordingly, issued a

caution memo to the erring officials. The Tribunal also notes that

these subsequent developments were not brought to the notice of this

Court, when it was hearing W.P. (C) No.396/2007 and it proceeded to

pass the order dated 13.01.2009.

25. I may note that the said writ petition had been preferred by the

State of Chhattisgarh, i.e. respondent no.2 and the failure on their part

to report the aforesaid developments to this Court throws light on the

disposition of respondent no.3 towards respondent no.2. At this stage,

I may note that the petitioner and the respondent no.2 entered into a

Memorandum of Understanding (MOU) on 04.06.2005, whereunder the

petitioner intends to set up an integrated steel plant of 5 MTPA in

Bastar Distt of respondent no.2 State.

26. The Tribunal notes in the impugned order that the State Govt.

had assured the petitioner the grant of mineral concession in the very

same area which was under the holding by some other private party

for mineral concession. While on the one hand, the applications for

grant of mining leases were pending before the State Govt. since the

year 2000 which were not disposed of till January 2007, on the other

hand, in respect of the same area, the State Govt. entered into a MOU

with the petitioner. The Tribunal raises, and in my view rightly so,

doubt as to the intention of the State Govt.

27. It has been argued before me that the report of the CVO is a

quasi judicial report and the findings returned by the CVO are binding.

I cannot accept this submission. The proceedings before the CVO are

not quasi judicial in nature. He simply conducted an enquiry, and on

the basis of the information collected by him, made his report. The

CVO under its procedure did not give any opportunity to the

entity/person being enquired into to furnish his/its explanation. No

hearing was held before making the report. The stand of the party

under enquiry was neither called for nor considered. It is precisely for

this reason that the report of the CVO was taken up by the Ministry in

consultation with the CVC, and further action is founded upon the

scrutiny of the report by the CVC. The limited purpose for which the

proceedings before the CVC are considered to be judicial proceedings

is stated in section 12 of the CVC Act. The purpose is only this - that

the evidence led before the CVC is accorded the same sanctity as that

recorded before a Court.

28. The submission of the petitioner that the four prospecting

licenses in question were granted without obtaining approval of the

Central Govt. under section 2 of the Forest Act and, therefore, the said

prospecting licenses were null and void under section 19 of the MMDR

Act has been considered by the Tribunal in para-17 of the impugned

order. The view taken by the Tribunal is that a challenge to the grant

of the PLs could have been raised within a period of three months

under section 30 of the MMDR Act. The Tribunal has further held that

in the revision proceedings preferred by respondent no.3, JNIL against

denial of mining lease to respondent no.3, the said issue could not be

raised, as the scope of the proceedings under section 30 was limited to

the challenge to the order of the State Govt. dated 31.01.2007. The

Tribunal holds that nobody challenged the grant of PL to respondent

no.3, and that the challenge raised by the petitioner herein and the

State Govt. was barred by limitation.

29. The argument of the petitioner that the grant of PL to respondent

no.3 is void ab initio and, therefore, such a ground could be set up at

any stage has also been rejected by the Tribunal by holding that the

State Govt. had the power under the MMDR Act to grant the PL. It had

exercised its jurisdiction by grant of PL to respondent no.3. Whether

the jurisdiction was exercised rightly, or wrongly, could have been a

matter of challenge, if raised appropriately, at the relevant time. So

long as the jurisdiction existed and has been exercised, the order could

not be considered as void ab initio. I am inclined to accept this

reasoning of the Tribunal, particularly as the State Govt. had itself

admitted and acknowledged that respondent no.3 had successfully

conducted prospecting operations vide letter dated 08.10.2004.

30. The Tribunal rejects the petitioners submission with regard to the

failure of respondent no.3 to obtain requisite clearance under the

Forest Act by observing that the Conservator of Forest, Kankar granted

permission to respondent no.3 vide letter dated 20.01.2000. A dispute

could not be raised after eleven years to contend that the Conservator

of Forest, Kankar was not the authorized officer, and therefore no

permission was validly obtained. The Tribunal observes that the

permission granted by the Conservator of Forest was conveyed to the

DFO, Narayanpur with instruction to ensure that prospecting

operations are carried out properly. Pertinently, all these years the

State Govt. did not raise any issue with regard to the permission

obtained from the Conservator of Forest, Kankar. It was not the stand

of the State Govt. that the Conservator of Forest was not authorized to

grant the permission and, therefore, the prospecting operation carried

out by respondent no.3 was liable to be ignored. This stand appears to

have been raised for the first time after the petitioner became

interested in obtaining the mining lease in respect of the same area,

and is in the teeth of the letter of the State Govt. dated 08.10.2004,

whereby it acknowledges that prospecting operation has been carried

out by respondent no.3.

31. The contention of the State Govt. that the respondent no.3 had

not given any undertaking before commencing prospecting operations

was also not believed in the light of the undertakings stated to have

been given by JNIL on 14.06.1999, 23.07.1999, 03.08.1999 and

26.12.1999. Pertinently, the Tribunal observes that these documents

were not refuted by the petitioner or the State Govt. during the course

of hearing. The Tribunal observes that intimation for commencement

of prospecting operations was given by JNIL to IBM, and consequently

no violation of Rule 4, 6 and 7 of the MCDR was established. The

failure to submit a copy with the State Govt. could only have been an

omission, but could not make the prospecting operations void.

Pertinently, the IBM had acknowledged receipt of the prospecting

reports on 17.05.2000. The RCOM had also issued a letter dated

22.02.2007 confirming that there was no standing violation regarding

prospecting operations in the areas in question. A perusal of Rule 7 of

MCDR shows that the obligation of the holder of a prospecting license

is required to send the intimation in Form A, of the commencement of

prospecting operations, to the Controller General, Controller of Mines

and the RCOM. It is not shown, how respondent no.3 is alleged to have

breached the said procedural requirement.

32. The Tribunal rejected the submission of the petitioner and the

State Govt. with regard to the alleged forgery of the prospecting

reports on the ground that they were printed on letterheads of

respondent no.3, which were produced after May 2000, firstly by

observing that IBM had confirmed receipt of the prospecting reports in

May 2000; secondly that the State Govt. had not made a

straightforward submission as to when it actually got the prospecting

reports; thirdly that the State Govt. had in its own letter dated

08.10.2004 addressed to the Central Govt. confirmed that prospecting

operations had been carried out by JNIL and a clear estimation of iron

ore reserves provides, and; lastly by accepting the explanation of

respondent no.3 that initially the analysis reports were submitted on

plain paper in May 2000 and thereafter the State Govt. called upon the

respondent no.3 to verify the laboratory in which the analysis was

done. Since analysis had been done in-house, a fresh report on JNILs

letterhead had been supplied. Pertinently, the original analysis report

on plain paper was found in the record of IBM during the CVO enquiry.

The Tribunal also notes that the State Govt. had also observed in its

impugned order in para-12 that mining lease applications were

submitted by respondent no.3 after completing prospecting operations

alongwith prospecting reports, which were submitted on 16.05.2000.

33. The Tribunal takes note of the letter of Mining Office dated

26.07.1999 for demarcation of the area for prospecting by JNIL, letter

of the District Mining Officer requesting the Divisional Forest Officer on

14.09.1999 to grant permission to start prospecting operations. IBM

confirmed vide letter dated 22.02.2007 that there was no standing

violation committed by respondent no.3 observed while carrying out

prospecting operations in all the areas in question.

34. The aforesaid are all findings of fact based on the record

produced before the Tribunal. Learned senior counsels for the

petitioner have not been able to assail any of these findings of fact on

the ground that they are not supported by the record. Even otherwise,

this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India, does not function as a fact finding body. This

Court's discretionary jurisdiction to interfere with orders in the exercise

of its power of judicial review has been commented upon by the

Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai,

(2003) 6 SCC 675, in the following words:

"(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the

above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis."

35. The reasoning adopted by the Tribunal for returning the findings

of fact, as returned by it, cannot be said to be perverse. It cannot be

said that the Tribunal has acted with perversity, or in complete

disregard of the record before it, or beyond its jurisdiction, or that it

would lead to grave injustice, if sustained. It was for the Tribunal to

have scrutinized the order of the State Govt. on the basis of the

evidence before it in the shape of record, and there is a detailed

analysis to justify the findings of fact returned by the Tribunal.

36. The endeavour of the petitioner and the State Government to

raise doubts on the prospecting reports by reference to the facts and

figures has also been rejected by the Tribunal and, in my view,

reasonably so. The Tribunal notes that the State Govt. had accepted

the prospecting reports submitted by respondent no.3. The said

prospecting reports had provided conclusive estimates of the reserve

of iron ore in the area in question. The endeavour of the State Govt. to

rely upon the estimate of reserves provided by Geological Survey of

India in its regional exploration was considered and rejected by the

Tribunal in para-26 of the impugned order for technical reasons. The

petitioner has not assailed the said finding before me. So far as the

shortcomings found by the State Govt. in the prospecting reports are

concerned, the Tribunal has observed that respondent no.3's response

to the said alleged shortcomings had not been effectively dealt with by

the State Govt. Moreover, the said shortcomings are to be looked into

by the IBM during the preparation of the mining plan. It is observed

that if the State Govt. had any issues, it ought to have issued a notice

under Rule 26(3) of the MCR Rules, 1960, which has not been done.

37. Learned senior counsel for the petitioner has submitted that

there is nil possibility of getting prior approval under the Forest Act

from the Central Govt., even if the State Govt. were to grant mining

lease to respondent no.3. That, in my view, cannot be a reason for the

State Govt. to deny the mining lease of respondent no.3, who enjoys a

preferential right. If the said clearance is not forthcoming for

respondent no.3, it would also not be forthcoming for any other

applicant including the petitioner. It cannot be predicated at this stage

whether or not the Central Govt. clearance would eventually be

granted or not, and if so, under what circumstance and with what

conditions.

38. For all the aforesaid reasons, I find no merit in this petition and

dismiss the same, leaving the parties to bear their respective costs.

(VIPIN SANGHI) JUDGE NOVEMBER 09, 2011 SR