Delhi High Court
M/S. Infrastructure Logistics ... vs Union Of India & Ors. on 15 February, 2012
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 25.01.2012
% Judgment delivered on: 15 .02.2012
+ W.P.(C.) Nos. 520/2012 & 521/2012
M/S. INFRASTRUCTURE LOGISTICS PVT. LTD...... Petitioner
Through: Mr. Dhruv Mehta, Senior Advocate,
with Ms. Ekta Kalra, Ms. Linette,
Ms. Sriram Krishna & Mr. Prannoy
Dey, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondent
Through: Ms. Sapna Chauhan, Advocate for
the respondent No. 1/UOI.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. These two writ petitions, namely W.P(C) 520/2012 and 521/2012
have been preferred by M/s. Infrastructure Logistics Pvt. Ltd (for short-
Infrastructure) to assail the two orders dated 18.11.2011 passed by the
Mines Tribunal, whereby the revision applications preferred by M/s.
Aakash Universal Limited (for short-Akash-respondent no.3 in W.P(C)
520/2012) and M/s Ashapura Minechem Limited (for short-Ashapura-
respondent no.3 in W.P(C) 521/2012) have been allowed, and the
Mines Tribunal has set aside the order dated 29.08.2009, passed by
the State of Maharashtra, recommending the grant of the mining lease
of the area in question for bauxite ore admeasuring 192.28 hectares in
favour of the petitioner. The Mines Tribunal has remanded the case
back to the State Government to decide the applications made by the
applicants for obtaining the mining lease on merits afresh.
2. Learned senior counsel for the petitioner has been heard at
length and, as I find no merit in these petitions, I proceed to dispose
them of.
3. On 12.10.2006, the Government of Maharashtra issued a
notification under Section 11(2) and (4) of the Mines and Minerals
(Development and Regulation) Act, 1957 (for short, the `Act‟) notifying
the areas mentioned in the Schedule as being available for grant of
mining leases/prospecting licenses for bauxite ore and calling for
applications from general public for being considered for such grant.
The State Government extended the period for filing of applications
upto 31.01.2007. Apart from the petitioner, various other applicants
submitted their applications, including Akash and Ashapura. The Chief
Minister of Maharashtra granted hearing to the applicants on
07.05.2009 and passed the order dated 29.08.2009 recommending the
grant of mining lease for bauxite order over an area of 192.28 hectares
in favour of the petitioner.
4. In respect of the petitioner, the details noted by the State
Government in its order dated 29.08.2009 read as follows:-
"(10) M/s. Infrastruture Logistic Pvt. Ltd, Goa has applied for
grant of ML over an area of 201.22.10 H/R on 18.01.2007. It is
observed from their submissions that:-
(i) It is Private Limited Company and Promoters are
engaged in Iron Ore mining and export.
(ii) Applicant has the expertise in Mining, logistic and
Value addition to Mineral ore. They are expertise to
operate across the full value chain and are operating
Mines in Karnataka, Maharashtra and Goa and they
do have experience of Mining.
(iii) They have qualified technical staff and modern
equipment for mining.
(iv) It is proposed to establish a Benefication/value
addition Plant with investment upto Rs.200.00 crore.
(v) Applicant will participate in local area development
like construction of roads, plantation, education,
health services, etc.
(vi) Applicant will take adequate care of Environment
Protection."
5. I may also at this stage itself take notice of the observations
made by the State Government in respect of Akash and Ashapura
which read as follows:-
"(15) M/s. Akash Universal Ltd., Mumbai has applied for
grant of ML over an area of 201.22.10 H/R on 24.01.2007.
It is revealed from their submissions that:-
(i) It is Limited company and is engaged in mining
business for last 15 years.
(ii) Applicant does not hold any ML/PL. Technical
experts will be appointed. However, Group
Companies do have experience of mining.
(iii) Their share capital is Rs.2.00 crores.
(iv) They have submitted audit Report as on 31.03.2007.
(v) Company will invest Rs.500.00 crores for mining.
(vi) Applicant intends to set up Alumina Plant. But project
report is not given."
"(1) M/s. Ashapura Minechem Ltd., Mumbai has applied
for grant of ML over an area of 201.22.10 HR on
12.09.2003. It is seen from their submissions that:-
(i) It is Private Limited company engaged in mining,
processing of the minerals.
(ii) They do hold ML/PL in Maharashtra and have pretty
good experience of mining activities. They are well
equipped with technically qualified personnel.
(iii) It is proposed to make investment of Rs.30/- lakhs for
mining. Their financial position is sound.
(iv) So far they have made investment of Rs.641.00 lakhs
in the State. It is also proposed to set-up Alumina
Refinery/Smelter Plant with investment of Rs.4232.00
crores and project report is submitted."
6. The observations made by the State Government in its order
dated 29.08.2009 read as follows:-
"1. After going through the records and taking into
consideration the oral and written submissions of applicants and
going through the provisions of the Act and Rules, I have made
the following observations:-
(i) At Muaze Ambivali and Mauze Kante the area
available to be recommended for grant of M.L is
192.28.10 H/R only.
(ii) In all 17 applicants have made 23 applications for
grant of mining lease.
2. The said area has been notified under Section.11(2)
and (4) of the Act. Hence selection of applicant/s to be
recommended for grant of P.L. will be governed as per
relevant Rules and Regulations.
3. The Inter-se-Merit Chart is enclosed herewith as
Exhibit „A‟, it may be noted that it is a vital part of this
Order. It also indicates reasons for acceptance/rejection of
the application.
4. This order is restricted to the compartment number
and area thereof already notified only. However, some of
the applicants have applied over other areas also. It may
be noted that such area is not the subject matter of this
order.
5. Applicants who do have experience of mining
operations, well equipped with technical expertise and are
financially sound are as follows:-
(i) M/s. Ashapura Minechem Ltd., Mumbai.
(ii) M/s. Ramgad Minerals and Mining Pvt. Ltd.,
Hospet.
(iii) M/s. P.Z. Gawade, Vengurla.
(iv) M/s. Gimpex Metal Ltd., Chennai.
(v) M/s. Core Minerals, Chennai.
(vi) Maharashtra State Mining Corporation Ltd.,
Nagpur.
(vii) M/s. Infrastructure Logistic Pvt. Ltd., Goa.
Rest of the applicants either intends to set-up mineral
based industry or utilize the mineral for trading."
7. The inter se merit of Ashapura, the petitioner and Akash noted in
the merit chart, Ex. „A‟ to the order dated 29.08.2009 reads as follows:-
Sr. Name of Date of Areas applied(in Special Financial The Proposed Reasons for
No. the applicatio Hec.) Knowledge resources of Nature & Investmen Acceptance/
applicant n or the applicants quality of t for mines Rejection
experience the or the
possessed technical Industry
by the staff based on
applicant employe the
d or to Minerals
be
employe
d by the
applicant
S.No Area in
Hect.
M/s 12/09/03 Ambiva 42.35 Holding Share Capital Technical Rs.4232.0 Application is
Ashapura ML li 13 to mining Rs.6,38,27,000/ Staff 0 rejected for reasons
Minochem 16,50,6 leases in - available mentioned in para 2
Ltd, 3,65 Maharashtr (a) of the Conclusion
Mumbai. Kante a & Gujarat. of this Order.
3,4,10
to
15,18
to
25,28
10 M/s 18/01/07 Kante 158.87.1 NIL Share Capital Technical Rs.10 Application is
Infrastructu ML 0 Rs.1 crore Staff crore accepted for reasons
re Logistics 42.35 available mentioned in para 3
Pvt. Ltd, (c) of Conclusion of
Goa. this Order.
15 M/s Akash 24/01/07 Ambiva 201.22.1 NIL Solvency Technical Rs.50 Application is
Universal M.L. li Certificate of Staff not crore rejected for reasons
Ltd.Mumbai Kante Rs.50 Lakh. available. mentioned in para 3
Propose to (d) of the Conclusion
appoint. of this Order.
8. The conclusion drawn by the State Government in its order read
as follows:-
"1. Bauxite Ore reserves in Maharashtra are limited and
that too concentrated in Kolhapur district and two coastal
districts viz. Ratnagiri and Sindhudurg. It is also pertinent
to note that the available Bauxite reserves are meagre and
it is not sufficient to establish a major industry like Alumina
Refinery. Further the Bauxite Ore available in the area is in
the form of boulders and is of Float type.
2. In the light of prevailing circumstances, it is evident tht
the applicant‟s mentioned in para 5 under caption
"Observations" prevails over all other applicants. This
means that there are number or eligible applicants.
Therefore, it has become difficult to choose one of them.
In such case I have taken into consideration the
contentions made in para 8.8 of Guidelines issued by the
Government of India, Ministry of Mines vide their letter
No.F.No.7/60/2006-MIV, dated 24.06.2009. wherein it is
also stated that section 11(3) mentions various criteria for
selection from amongst applications received on same day
(actual or deemed) but the inter-se-weightage of these
criteria is not defined. Thus, applicants having adequate
technical support and financial capacity to implement the
mining operations (RP/PL/ML) and who comply the other
parameters laid down in Guidelines, dt. 24.06.2009 issued
by Govt. of India do come in consideration zone for to be
recommended for mineral concession.
3. In view of above, the eligible applicant‟s are analysed as
follows:-
(a) As regards applicants mentioned in "Para-5 of the
"Observation" of this Order, following applicants
have been granted/recommended for grant of
mineral concession so far. Thus their cases has been
considered to the extent possible on the basis of
their merits. Further they can procure mineral from
other sources. Therefore, I do not recommend them
for grant of ML over the area under consideration.
(i) M/s. Ashapura Minechem Ltd.
(ii) M/s. P.Z. Gawade.
(iii) M/s. Gimpex Metal Ltd.
(iv) M/s. Core Mineral.
(v) Maharashtra State Mining Corporation Ltd.
(b) As regards M/s. Ramgad Minerals and Mining Pvt.
Ltd., it seems that they will utilize the mineral for
trading. However, State prefer captive use of
mineral, hence I reject their application.
(c) As regard M/s. Infrastruture Logistic Pvt. Ltd., Goa,
they are eligible in all respects as per Rules and
Regulations. Qualified technical staff is available.
They will execute Mining in scientific manner utilizing
modern techniques and equipments. Their financial
position is strong. They will take adequate care of
Environment Protection. Applicant will also
participate in social-economic development of local
area. In view of this, I am satisfied that they are
most eligible applicant to be recommended for grant
of M.L. for Bauxite Ore over the area applied by
them.
(d) Rest of the applicants are also otherwise eligible.
But since better option is available as mentioned
above hence I reject their application.
4. In view of above I pass the following Order in the
matter:-
Order
Under Section. 11(2) and 11(4) of the Act I
recommend to grant Mining Lease for Bauxite Ore
over an area of 192.28 H/R situated at Mauze
Ambivali Kante, Tal, Madangad, District Ratnagiri to
M/s. Infrastructure Logistic Pvt,. Ltd, Goa as per MAP
(Annexure „B‟) appended herewith. All NOC‟s from
the central Government, State Government and
Local Authorities be obtained by the applicant."
9. Akash and Ashapura preferred revision applications under
Section 30 of the Act read with Rule 55 of the Mineral Concession
Rules, 1960 (for short „MCR‟) before the Mines Tribunal.
10. The grievance of the revision applicants Akash and Ashapura was
that their applications were not considered on merits, and on
comparison with the petitioner, they were more deserving candidates
for grant of mining leasing over the area of 192.28 hectares of land
situated at Mauze, Ambivali & Kante villages in Mandangad Taluk,
Ratnagiri District upon application of the criteria prescribed under
Section 11(3) of the Act.
11. The case of Akash was that it had entered into and executed an
agreement in respect of a mega project of integrated steel plant and
aluminium refinery with captive power plant of 25 MW with the
Government of Maharashtra. The Government of Maharashtra had
already granted approval in respect of the said project. The value of
the project was 2200 crores. Loan of Rs.300 crores had been
sanctioned by Dena Bank. The land in respect of the said project had
been purchased/acquired. The company had acquired mining rights in
respect of bauxite in Maharashtra. Akash produced with its revision
application, documents in support of the aforesaid claims. It was also
claimed that Akash had already appointed a team of technical staff
consisting of 2 Geologists, 1 Plant Consultant and 1 Mining Engineer
and it had experience in mining business for the last 15 years. It had
been carrying on mining operation in Orissa for the last two years.
Akash also pointed out that it had submitted solvency certificate of Rs.
15 crores at the time of hearing, but the State Government had
erroneously considered the solvency certificate of Rs. 50 lakhs which
was submitted at the time of application. It was contended that the
petitioner Infrastructure had share capital of only Rs.1 crore. It did not
hold any mining lease or prospective licence in any State, whereas
Aakash had already acquired a good reputation in the mineral industry.
It was claimed that as opposed to the plan of the petitioner to establish
a benification/value additional plant with an investment of upto 200
crores, Akash was in the process of installing an integrated steel plant
of 1 lakh MT capacity and aluminium refinery and manufacturing plant
with a capacity of 2 lakhs MT at Ratnagiri, Maharashtra. The proposed
investment to be made by Infrastructure of Rs.200 crores was
miniscule as compared to the investment of Rs.2200 crores proposed
by Akash.
12. Akash also claimed that since bauxite ore was available in
limited and scarce quantities in the State of Maharashtra, the claims of
all persons involved in, and concerned with the business relating to the
industry should have been considered, where the raw material may be
required by them. Akash also contended that over a span of three
days, the State Government had prepared three different comparison
charts with different investment valuation. These charts contradicted
each other. It was claimed that, whereas, others had no plant
established or developed in the State of Maharashtra, the revisionist
Akash had already undertaken the process of installation of the
integrated steel plant of Rs. 1 lakh MT, and aluminium refinery and
manufacturing plan of capacity of 2 lakh MT at Ratnagiri, Maharashtra.
It was claimed that Akash‟s said plant would not survive without the
raw material.
13. Aakash claimed that on the one hand, the Govt. of Maharashtra
had entered into a Memorandum of Understanding for a mega project
with it of the value of Rs.2,200 crores, on the other hand, the entire
area measuring 192.21 hectares had been solely awarded to
Infrastructure for the purposes of mining. Aakash contended that,
whereas, it has already appointed a team of technical staff consisting
of two geologists, 1 plant consultant and 1 mining engineer,
Infrastructure had merely stated that they had qualified technical staff
without furnishing details of the same.
14. Ashapura in its revision petition submitted that the State
Government had ignored the fact that it had 30 years of extensive
experience in mining, processing and marketing on industrial minerals.
Ashapura claimed itself to be the world‟s largest producer of bentonite,
and also the largest producer, processor and exporter of bauxite in
India. It claimed to have significant presence in the field of various
minerals including barite, feldspar, bleaching clay and kaolin.
Ashapura also claimed that it had been awarded various awards by the
Government Organisations/Corporations including Export Promotion
Council and Ministry of Commerce, Government of India. Ashapura
also claimed that it had plans of investing Rs.4500 crores in a mega
project already sanctioned by the Government of Maharashtra for
setting up an Alumni Refinery and Smelter Plant of 0.5 million tonnes in
Ratnagiri District.
15. Ashapura contended that it has vast experience of mining
operations and its financial position was acknowledged by the State
Government in the impugned order itself. The applicant had a share
capital of over 4.38 crores, available technical staff and it proposed
investment of Rs.4232 crores. In all parameters, Ashapura claimed
that it was superior to Infrastructure. Ashapura claimed that the order
of the State Government was not based on the guidelines issued by
the Government of India, Ministry of Mines in their letter dated
24.06.2009, and it was arbitrary and subjective. Ashapura contended
that there was no bar in considering its application for grant of further
leases merely because it had earlier been granted bauxite leases. It
claimed that the selection of the petitioner was not done in a
transparent manner. Ashapura also claimed that no special reason
was disclosed to favour the petitioner for grant of mining lease, and
prior approval of the Central Government was not sought for the said
purpose. The order of the State Government was attacked on the
ground of it being patently perverse, arbitrary and discriminatory.
16. The Mines Tribunal in its order dated 18.11.2011 passed in the
revision preferred by Aakash has observed that on an examination of
the inter se merit chart enclosed with, and forming part of the
impugned order passed by the State Government, it is seen that in the
inter se merit chart the proposed investment of Aakash has been
shown as Rs.50 crores, whereas in the body of the order the same had
been noted as Rs.500 crores. This, apparently, shows non application
of mind on behalf of the State Government. In comparison, the
petitioner had proposed investment of Rs.10 crores (as noted in the
inter se merit chart), whereas in the body of the order of State
Government, the same had been noted as Rs.200 crores, which, again
showed non application of mind by the State Government.
17. The Tribunal also observes that some other applicants have
proposed more investment than both Aakash and the petitioner, and
there were other applicants with stronger credentials, who scored over
the petitioner on the basis of parameters contained in Section 11(3) of
the Act, namely, special knowledge and experience, financial
resources, availability of technical staff and proposed investment. The
Tribunal holds that the argument that more deserving applicants had
been considered to the extent possible, and that they can procure
mineral from other resources, could not be sustained in the facts of the
case. The Tribunal concluded that the State Government had not
made proper analysis of the case with reference to the provision of
Section 11(3) of the Act.
18. In the impugned order dated 18.11.2011 passed in the revision
preferred by Ashapura, the Tribunal observes that Ashapura had shown
financial resources of more than Rs.6 crores, and proposed investment
of Rs.4232 crores towards setting up of Alumina Refinery/Smelter Plant
for which it had submitted a project report. In comparison, the
petitioner had shown financial resources of Rs.1 crore share capital
and proposed investment of Rs.10 crores. Though the petitioners
proposed investment had been shown as Rs.200 crores in applicant
wise details (which was noted as Rs.10 crores in the inter se merit
chart prepared by the State Government), it was less meritorious in
comparison with Ashapura. Ashapura had stronger credentials and
scored over the petitioner on the basis of parameters contained in
Section 11(3) of the Act, namely, special knowledge and experience,
financial resources, availability of technical staff and proposed
investment. In this case as well, it was observed that the ground taken
by the State Government that the requirement of Ashapura had been
considered to the extent possible, and that it can procure material
from other resources, do not stand scrutiny in the facts of the case,
and that the State Government had not made a proper analysis of
provision of Section 11(3) of the Act in the impugned order.
19. At the outset, I may note that while exercising the extraordinary
writ jurisdiction under Article 226 of the Constitution of India, this Court
does not sit in appeal over the decision of the Mines Tribunal. All that
is being undertaken is judicial review of the said decisions. Therefore,
unless the petitioner can show either the breach of the procedural
requirements, or establish that the impugned orders passed by the
Mines Tribunal are illegal and contrary to the provisions, inter alia, of
the Act, or otherwise perverse, this Court would normally not interfere
with the decision of the Mines Tribunal.
20. The tribunal, in both the cases, takes note of the serious
discrepancy in the noting of the material facts and figures by the State
Government. These have already been noted herein above. For
instance, in the body of the order passed by the State Government in
relation to Aakash, it is noticed that they proposed to invest Rs.500
crores for mining. Whereas, in the inter se merit chart, which forms an
integral part of the order, the proposed investment for mines or
industries based on the minerals is to the tune of Rs.50 crores only.
Similarly, the State Government has proceeded on the basis that
Aakash had submitted solvency certificate of Rs.50 lacs, whereas they
had supplied solvency certificate of Rs.15 crores.
21. The tribunal has held that the scale of investment proposed by
Aakash was to the tune of Rs.500 crores as opposed to the investment
proposed by the petitioner Infrastructure of Rs.200 crores. There were
other applicants who had proposed more investment than the
Infrastructure and Aakash, such as Ashapura. The tribunal holds that
there were other applicants who had stronger credentials and scored
over and above Infrastructure on the basis of parameters contained in
Section 11(3) of the Act, namely, special knowledge and experience,
financial resources, availability of technical staff and proposed
investment. Consequently, the tribunal has concluded that the State
Government has not made proper analysis of the case with reference
to provision of Section 11(3) of the Act in its order dated 29.08.2009.
22. The submission of learned senior counsel for the petitioner, Mr.
Dhruv Mehta, firstly, is that the State Government had duly applied its
mind and evaluated all the applications on the basis of the criteria set
out in the Act. He submits that equitable distribution of the resources
weighed heavily with the State Government while passing the order
dated 29.08.2009, and since both Aakash and Ashapura had been
granted mining leases within the State for the same ore, the State
Government observed that their cases had been considered to the
extent possible on the basis of their merit. He submits that the
Supreme Court in Tata Iron & Steel Company Limited v. Union of
India & Another, (1996) 9 SCC 709, has upheld the policy of
equitable distribution of the mineral resources.
23. He further submits so far as Aakash is concerned, the State
Government had noted that though it had proposed investment of
Rs.500 crores for mining, and it had also proposed setting up of an
Alumina Plant, but no project report had been given. For this reason,
Aakash was not even considered as an eligible applicant in para 3 of
the order passed by the State Government and in the conclusion drawn
by it in its order.
24. A perusal of the order of the State Government does not reveal
that the submission of the project report, according to the State
Government, was an eligibility requirement, without which the
application of an applicant was liable to be rejected at the threshold.
There is no observation made in its order by the State Government,
that Aakash cannot be considered to be eligible, because it has not
submitted the project report with regard to the setting up of the
Alumina Plant. If the contention of Aakash - that it was in the process
of installing an integrated steel plant of 1 lakh MT capacity and
aluminium refinery and manufacturing plant with a capacity of 2 lakhs
MT at Ratnagiri, Maharashtra, for which the Govt. of State of
Maharashtra had already approved a captive power plant of 25 MW, is
correct, then that may be an even more credible information than what
a project report may provide to the State Government for assessing
the seriousness of commitment of Aaksh to make the investments in
future, as proposed by it. Therefore, no conclusion can be drawn that
the Government did not consider Aakash because it did not provide the
project report. The fact that the project report has not been supplied
by Aakash is noted in the order of the State Government as a matter of
fact, but there is no observation that, for that reason Aakash is being
considered ineligible.
25. So far as reliance placed on Tata Iron & Steel Co. (supra) is
concerned, that decision was rendered in a completely different set of
circumstances. That was a case relating to renewal of a mining lease
over a large area which was held by TISCO, whose needs were limited,
while several needy manufacturers were deprived of adequate raw
material. It had, therefore, been observed by a committee referred to
as "Rao Committee" that the grant of renewal of mining lease over an
area as large as that held by TISCO, in favour of a single applicant
whose own needs are limited, while several needy manufacturers were
deprived of adequate sources of raw material, would be to promote
monopolistic tendencies which cannot be allowed. This committee was
of the view that the concept of "mineral development" under Section
8(3) of the Act requires the assessment of the captive mining
requirement of different industries as also the application of the
principle of equitable distribution of mining leases. After perusing the
report of the Rao Committee, the Supreme Court observed that:
"63. ..... ...... ....... On the issue of the application of the
principle of equitable distribution, we are of the view that
the Committee had, after having taken note of the
prevailing situation and the problems faced by needy
manufacturers, taken the correct view in recommending its
implementation.
64. We are, therefore, of the view that the Committee
had correctly interpreted the relevant material for
appreciating the concept of "mineral development" and
adopting the stance that it encompassed the concept of
captive mining as well as the principle of equitable
distribution".
26. The concept of equitable distribution, in my view, cannot become
a tool in the hands of the State Government to give a go to the criteria
statutorily provided in Section 11(3) of the Act. The State Government
cannot override the said criteria in the name of "equitable
distribution". Equitable distribution in Tata Iron & Steel Co. (supra)
was approved in the context of the renewal of the mining lease of a
very large area in favour of TISCO, when their need was small
compared to others, and others were facing problems of shortage. The
argument of equitable distribution was, therefore, advanced to say
that the concept of mineral development would not be advanced by
creation of such unequal and monopolistic distribution. I do not
appreciate how the concept of equitable distribution approved in the
context of the facts in Tata Iron & Steel Co. (supra) can be applied in
the facts of the present case, which are entirely different.
27. The observation of the State Government that the case of
Ashapura and other eligible applicants has been considered to the
extent possible, and that they could procure mineral from other
sources, is in the teeth of the provisions of the Act, as the Act does not
seek to prioritize those applicants who have not been granted mining
leases, vis-à-vis, those who have earlier being granted mining leases.
28. The limitation with regard to grant of mining leases is contained
in Section 6 which, inter alia, provides that no person shall acquire in
respect of any mineral or prescribed group of associated minerals in a
State, one or more mining leases covering a total area of more than 10
sq. kms. It is not the case of the petitioner that, either Aakash, or
Ashapura have been granted mining leases by the State of
Maharashtra for bauxite ore to the extent of 10 sq. kms. Rejection of
the application of Ashapura on this basis is clearly beyond the
provisions of the Act.
29. The submission of Mr. Mehta that others had not even
approached the Mines Tribunal by filing a revision and, therefore, the
order dated 29.08.2009 could not be disturbed by the tribunal on the
strength of the case of other applicants has no merit, since the
petitioners case, on merits, prima facie, does not appear to match up
with the case of either Akash or Ashapura.
30. In Sandur Manganese & Iron Ores Ltd. v. State of
Karnataka & ors., JT 2010 (10) SC 157, the Supreme Court has held
that "It is not open to the State Government to justify grant based on
criteria that are de hors to the MMDR Act and the MC Rules. The
exercise has to be done strictly in accordance with the statutory
provisions and if there is any deviation, the same cannot be sustained.
It is the normal rule of construction that when a statute vests certain
power in an authority to be exercised in a particular manner then the
said authority has to exercise it only in the manner provided in the
statute itself. This principle has been reiterated in C.I.T. Mumbai v.
Anjum M.H. Ghaswala & Ors., [JT 2001 (9) SC 61 : (2002) 1 SCC 633] at
644, Captian Sube Singh & Ors. v. Lt. Governor of Delhi & Ors. [JT 2004
(Suppl.1) SC 413: (2004) 6 SCC 440] and State of U.P. v. Singhara
Singh & Ors. [1964 (4) SCR 485]."
31. It is not for this Court to assess the comparative merit of the
various applicants. The petitioner has not been able to show as to how
the observations of the Mines Tribunal, that the cases of Aakash and
Ashapura stand on a stronger wicket, on the basis of the parameters
prescribed in Section 11(3) of the Act, namely, special knowledge and
experience, financial resources, availability of technical staff and
proposed investment, are ex-facie erroneous. The observation made
by the tribunal that the State Government has not made proper
analysis of the case with reference to the provisions of Section 11(3) of
the Act, therefore, appears to be well founded.
32. Reliance placed by learned senior counsel for the petitioner on
the guidelines regarding submission of mineral concession proposals
under Section 5(1) of the Act dated 24.06.2009, and in particular
clause 8.8 thereof, does not advance the case of the petitioner either.
Clause 8.8 of these guidelines reads as follows:
"8.8 Section 11(3) mentions various criteria for selection
from amongst applications received on the same day
(actual or deemed) but the inter-se weightage of these
criteria is not defined. Further, if more than one applicant
has the capabilities as mentioned in Section 11(3) the
choice of applicant becomes difficult. Since all the eligible
applicants are co-equal in terms of chronology, the choice
has to be made on objective selection criteria in a
transparent manner. Normally, the recommendation
of a State Government in this regard is acceptable if
a comparative chart (as per proforma attached) of
all the applicants on the criteria enumerated in
Section 11(3) of MMDR Act is available and the State
Government has passed reasoned orders on file for
recommending acceptance of case of a particular
applicant and for not recommending the acceptance
of the remaining applicants. The State Governments
should, therefore, while sending the proposal to the
Ministry, not only enclose the comparative chart based on
the provisions of Section 11(3) of the MMDR Act but should
furnish a self-contained speaking order duly signed by the
competent authority." (emphasis supplied)
33. Even though the State Government has referred to the said
guidelines in its order dated 29.08.2009, it appears that it has
rendered lip service to the aforesaid guidelines, as it has not prepared
a comparative chart on the basis of the criteria enumerated in Section
11(3) of the Act, and the reasons adopted by it in its order do not have
relevance to the said criteria contained in Section 11(3) of the Act.
34. For all the aforesaid reasons, I do not find any merit in these
petitions and dismiss the same.
35. However, I may observe that observations made by me in this
order have been made only for the purpose of consideration of the
petitioner‟s present writ petitions, and the same shall not come in the
way of the petitioner in the remanded proceedings before the State
Government or any subsequent proceedings arising therefrom, if any.
36. Petition stands disposed of in the aforesaid terms.
VIPIN SANGHI, J
FEBRUARY 15, 2012
sr/„BSR‟
